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i 


A    TREATISE 


ON   THE   LAW   OF 


TRUSTS  AND  TRUSTEES 


BY 


JAIRUS   WARE   PERRY 


SECOND     EDITION 


IN    TWO    VOLUMES 
Vol.  IL 


BOSTON 
LITTLE,   BROWN,   AND   COMPANY 

1874 


aH^^O/(^ 


Entered  according  to  Act  of  Congress,  in  the  rear  1874,  by 

JAIRUS   AVARE  PERRY, 

lu  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 


^  •  L- 


CAMBRIDGE : 
PRESS  OF  JOHN  T^^LSO^"  AND    SOX. 


CONTENTS   OF   YOLUME   11. 


CHAPTER  XYI. 

SECTIOlf 

Powers  of  Trustees 4;73-519 

§  473.  Division  of  powers. 

§  474.  Powers  where  the  trust  is  before  the  court. 

§  475.  Powers  in  law  and  in  equity. 

§  476.  General  power  of  trustees. 

§  476  a.  Power  to  ask  direction  of  court. 

§  477.  General  power  of  repairing. 

§  478.  Powers  of  superintendents  of  public  works. 

§  479.  Of  executors  to  close  up  testator's  establishment. 

§  480.  Power  of  executor  to  appropriate  a  legacy. 

§  481.  Po\s-er  to  waive  the  statute  of  limitations. 

§  482.  Power  to  release  or  compromise  a  debt. 

§  483.  Power  as  to  equity  of  redemptions. 

§  484.  General  power  of  leasing. 

§  485.  Pow  er  of  trustee  to  reimburse  himself. 

§  486.  Powers  of  trustees  of  trading  companies. 

§  487.  Power  of  insuring. 

§  488.  Special  powers. 

§§  489,  490.  Division  and  definition  of  special  powers. 
§§  491,  492.  Ditference  between  the  gift  of  a  power  and  of  an  estate. 

§  493.  Where  power  may  be  executed  by  survivors. 

§  494.  Where  by  heirs  or  devisees  or  assigns. 

§  495.  Where  by  assigns,  and  where  not. 

§  496.  Where  the  power  is  matter  of  personal  confidence. 

§  497.  Where  a  power  may  be  executed  by  la$t  survivor. 

§  498.  When  a  power  must  be  executed. 

§  499.  By  what  persons  powers  may  be  executed. 

§  500.   Whether  by  administrators  with  the  will  annexed. 

§  501.  By  whom  to  be  executed  when  no  person  is  named. 

§  502.  By  whom  where  a  trustee  refuses  to  accept. 

§  503.  Whether  the  power  goes  with  the  estate. 

§  504.  Wlio  can  execute  where  an  estate  is  assigned. 

§  505.  Powers  annexed  to  an  estate  survive  with  the  estate. 

§  506.  Where  a  power  may  be  contrary  to  the  rule  against  perpetuities. 

§  507.  Discretionary  powers,  where  and  where  not. 

§  508.  Division  of  discretionary  powers  and  their  execution. 

§  509.  Power  of  van.'ing  securities. 
§§  510,  511.  Control  of  courts  over  the  exercise  of  discretionan.-  powers. 


671521 


IV  CONTENTS    OF    VOLUME   II. 

§  511  a.  Courts  do  not  favor  uncontrollable  powers. 
§  511  6.  How  powers  must  be  executed. 

§  511  c.  Whether  it  is  necessary  in  the  execution  of  a  power  to  refer  to  it. 
§  512.  Powers  of  trustees  to  consent  to  a  marriage. 
§  513.  If  the  property  once  vests  in  cestui  que  trust,  the  power  is  gone. 
§  514.  Where  consent  is  a  condition  to  the  vesting  of  the  estate. 
§  515.  Power  in  general  restraint  of  marriage,  void. 
§  516.  A  limitation  until  marriage  with  consent,  good. 
§§  517,  518.  When  and  how  the  power  may  be  exercised. 
§  519.  Courts  will  control  the  exercise  of  such  a  power. 


CHAPTER   XVII. 

TaUSTEES  OF  THE  DrY  LeGAL  TlTLE  ;  TO  PRESERVE 

Contingent   Remainders  ;    of  Terms   Attendant  ; 

OP  Freeholds  ;   and  of  Leaseholds 520-538 

§§  520,  521.  Powers  and  duties  of  trustees  of  the  dry  legal  title. 
§§  522,  523.  Trustees  of  contingent  remainders. 
§§  524,  525.  Trustees  of  attendant  terms. 

§  526.  Powers  and  duties  of  trustees  in  possession  of  freeholds. 

§  527.  Must  pay  rates  and  taxes  and  collect  rents. 

§  528.  Trustees  power  of  leasing. 
§§  529,  530.  Their  power  where  special  directions  are  given  as  to  leasing. 

§  531.  Trustees  of  leaseholds. 
§§  532,  533.  Power  and  duty  to  renew  leases. 

§  534.  Who  is  to  bear  the  expense  of  renewing  leases. 

§  535.  When  trustees  may  not  renew  leases. 

§  536.  Liability  of  trustees  for  covenants  in  leases. 

§  537.  The  fine  for  renewing  a  lease. 

§  538.  The  right  to  renew  leases  a  valuable  right.    Trustees  cannot  renew  in  their  own 
names. 


CHAPTER   XVIII. 

Powers  and  Duties  of  Trustees  as  Between  Ten- 
ant FOR  Life  and  Remainder-man         539- 556  a 

§  539.  Trustee  must  act  impartially  between  tenant  for  life  and  remainder-man. 

§  540.  When  tenant  for  life  is  entitled  to  the  possession. 

§  541.  Where  the  trust  fund  is  personal  property. 

§  542.  In  wliat  place  personal  property  may  be  used. 

§  543.  Trustee  must  have  possession  of  stocks  and  similar  securities.   Power  of  attorney 

to  tenant  for  life. 
§§  544,  545.  As  to  extra-cash  dividends  and  stock  dividends  by  corporations. 
§  546.  As  to  the  increase  of  stock  upon  a  farm  or  plantation. 
§  547.  Of  propertj'  th-.it  perishes  or  is  consumed,  in  the  use,  or  decreases  in  value. 
§  548.  Rights  of  tenant  for  life  under  an  absolute  direction  for  conversion. 
§  549.  Keversiouarj-  interests  must  be  sold  for  benefit  of  tenant  for  life. 


CONTENTS    OF   VOLUME    II.  T 

§  550.  As  to  the  right  of  tenant  for  life  to  income  during  the  first  year,  —  and  after  the 

first  year. 
§  551.  Various  rules  upon  the  same  subject. 
§  552.  As  to  repairs  by  tenant  for  life. 
§  553.  As  to  insurance. 

§  554.  As  to  taxes,  rates,  and  incumbrances. 
§  555.   Where  tenant  for  life  becomes  bankrupt. 

§  556.  As  to  the  apportionment  of  rent,  income,  dividends,  and  annuities. 
§  556  a.  Form  of  an  account  upon  a  default. 


CHAPTER   XIX. 

Trusts  under  a  Will  for  the  Payment  of  Debts  ; 
FOR  the  Payment  of  Legacies  ;  and  for  Raising 
Portions 557-583 

§  557.  Payment  of  testator's  debts  at  common  law  and  under  statutes. 

§  558.  The  present  law  of  England. 

§  559.  The  law  in  the  United  States  as  to  the  payment  of  a  testator's  debts. 
§§  560,  561.  The  character  of  trusts  under  a  will  for  the  payment  of  debts. 
§§  562-566.  The  order  in  which  assets  are  marshalled  for  the  paj-ment  of  debt'',  as  be- 
tween heirs,  legatees,  and  devisees. 

§  567.  The  effect  of  charging  debts  upon  real  estate. 

§  568.  Legacies  generalh'  payable  out  of  personal  property. 

§  569.  The  effect  of  charging  legacies  upon  real  estate. 
§§  570,  571.  When  legacies  are  charged  upon  real  estate. 

§  572.  When  some  legacies  are  charged  upon  real  estate,  and  others  are  not. 
.    §  573.  What  amounts  to  the   paj'ment  of  a  legacy  so  as  to  discharge  the  testator's 
estate. 

§  574.  Where  legacies  bear  interest. 

§  575.  The  charge  of  a  legacy  upon  real  estate  follows  the  hind. 

§  576.  Trusts  for  raising  portions. 
§§  577,  578.  Whether  a  portion  is  to  be  raised  during  the  life  of  a  tenant  for  life. 

§  579.  The  usual  forms  of  drawing  settlements  at  the  present  time. 

§  580.  Powers  of  trustees  to  raise  portions. 

§  581.  At  what  time  portions  are  to  be  raised. 

§  582.  Where  trustees  neglect  to  raise  portions  as  directed. 

§  583.  Interest,  expenses,  and  accumulations. 


,  CHAPTER  XX. 

Trusts  under  Assignments  for  Creditors  ;  Trusts 
UNDER  Deeds  for  Particular    Creditors  ;    and 

TRUSTg^UNDER    PowER    OF    SaLE    MORTGAGES       .       .  585-602  jry 

§  585.  Trusts  for  creditors. 

§  586.  Whether  preferences  can  be  made  in  such  trusts. 

§  587.  Whether  these  trusts  are  void  as  fraudulent  under  the  bankrupt  laws. 


VI  CONTENTS   OF   VOLUME   II. 

§  588.  A  corporation  may  create  a  trust  for  its  creditors. 

§  589.  The  miiiiner  of  creatino;  a  trust  for  creditors. 

§  590.  Whether  a  trust  for  creditors  is  fraudulent  or  not  under  the  statutes  against 

fraudulent  conveyances. 
§§  591,  592.    What  acts  and  conditions  will  make  such  a  trust  fraudulent  and  void. 

§  59.3.  Where  such  trusts  are  revocable  by  the  debtor. 

§  594.  After  notice  and  acceptance  of  the  trust,  creditors  may  enforce  it. 

§  595.  Who  must  be  parties  to  a  suit  to  enforce  the  trust. 

§  596.  As  to  liens  upon  the  trust  property  and  rights  of  the  trustees. 

§  597.  The  trustees  must  proceed  according  to  the  deed  of  trust. 

§  598.  Powers  of  the  trustees  under  deeds  of  assignment. 

§  599.  Partnership  assignments. 

§  600.  Conditions  of  an  assignment  and  interest. 

§  601.  The  statute  of  limitations. 

§  602.  The  order  of  payment  by  the  trustees. 

§  602  «.  Trusts  under  deeds  to  secure  particular  debts,  and  under  power  of  sale  mort- 
fiages. 

§  602  b.  The  several  forms  of  mortgages. 

§  602  c.  The  equity  of  redemption  and  powers  of  sale. 

§  602  d.  Deeds  of  trust  and  power  of  sale  mortgages  of  the  same  character. 
■  §  602  e.  Form  and  execution  of  deeds  of  trust. 

§  602/'.  For  what  purpose  they  maj'  be  made. 

§  602  g.  Powers  of  trustees  under  deeds  of  trust  and  power  of  sale  mortgages  depend 
entirely  upon  the  contract. 

§  602  A.  Such  powers  are  irrevocable. 

§  602  i.  Performance  of  the  conditions  of  the  mortgage  extinguishes  the  power. 

§  602 y.  The  e^tates  of  the  mortgagor  and  mortgagee. 

§  602  k.  A  power  of  sale  is  u  power  appendant  to  the  estate. 

§  602  /.  Nature  of  the  trusts  under  a  power  of  sale. 
I  §  602  VI.  The  trusts  governed  by  the  same  rules  as  other  trusts. 

§  602  n.  Who  mav  execute  or  perform  the  trusts. 

§  602  0.  Trustees  must  exercise  the  utmost  good  faith. 

§  602/).  These  powers  must  be  strictly  followed. 

§  602  q.  Whether  the  sale  may  be  public  or  private,  and  the  form  of  notice. 

§  602  r.  Notice  must  be  certain  as  to  time  and  place  of  sale. 

§  602  s.  Statements  in  notice  must  be  accurate. 

§  602  <.  If  notice  is  not  given  according  to  the  power,  the  sale  void. 

§  602  u.  Sale  may  be  adjourned,  and  notice. 

§  602  v.  Those  having  the  power  of  sale  cannot  purchase  unless  specially  authorized 
bj'  the  power. 

§  602  w.  Etfect  of  a  purchase  by  the  trustee  or  mortgagee. 

§  602*.  Eflfect  of  a  sale  under  a  power,  what  rights  it  bars. 

§  602  y.  Whether  the  sale  may  be  in  lots  or  in  a  mass. 

§  602  s.  Whether  the  sale  will  be  set  aside  for  inadequacy  of  price. 

§  602  an.  Effect  of  a  sale  under  an  irregular  exercise  of  the  power. 

§  602  hb.  What  a  sale  under  the  regular  exercise  of  the  power  passes,  and  the  rights  of 
the  parties. 

§  602  cc.  If  the  sale  is  not  regular,  the  equitj'  of  redemption  is  not  barred. 

§  602  dd.  Irregularities  in  the  execution  of  the  power  of  sale  may  be  waived  by  the 
party  fur  whose  benetit  they  are  created. 

§  602  ee.  When  courts  ma}-  enjoin  the  sale. 

§  G02/'.  How  the  trustee  or  mortgagor  executes  his  trust  after  a  sale. 

§  QO^gfj.  Mortgages  with  power  of  sale  may  be  foreclosed  in  any  other  legal  manner. 


CONTENTS    OF   VOLUME   II.  VU 

CHAPTER  XXI. 
Trustees   for  Infants       G0o-G24 

§  603.  The  special  care  of  courts  of  equitj'  over  infants. 

§  604.  Invei^tments  for  infants. 
§§  605,  606.  Power  to  convert  an  infant's  personal  property  into  real  estate. 

§  607.  Conversion  in  cases  of  necessity. 

§  608.  Leases  of  infants'  lands. 

§  609.  Power  to  convert  real  estate  into  personal  propertj'. 

§  610.   Powers  of  courts  of  equity  to  decree  a  conversion  of  an  infant's  property. 

§  611.  The  rights  of  an  infant  will  remain  the  same  whether  his  property  is  converted 
or  not. 

§  612.  Duty  of  a  father  to  maintain  his  infant  children,  —  duty  of  trustees  as  to  main- 
tenance. 

§  61.3.  Power  of  the  court  to  order  maintenance. 

§  614.  Will  direct  an  inquiry  as  to  the  ability  of  the  father  and  the  rank  and  circum- 
stances of  the  family. 

§  615.  In  what  manner  infants  are  to  be  maintained. 

§  616.  When  m;iintenaiice  will  not  be  decreed. 

§  617.  Proceedings  to  obtain  decrees  of  maintenance. 

§  618.  Trustees  must  not  expend  the  principal  of  an  infant's  estate  without  the  sanc- 
tion of  the  court. 

§  619.  Whether  the  court  can  authorize  the  expenditure  of  part  of  the  principal  of  an 
infant's  property. 

§  620.  Where  the  settlement  or  will  contains  directions  as  to  maintenance. 
§§  621.  An  infant  cestui  que  trust  has  the  same  rights  and  remedies  as  otiier  cestuis  que 
trust. 

§  622.  Trustees  for  infants  must  account,  when. 

§  623.  Infants  may  be  maintained  out  of  the  jurisdiction  of  the  court. 

§  624.  To  whom  a  trustee  may  pay  money  for  an  infant. 

CHAPTER   XXII. 
Trustees  for  Married  Women 625-G86 

§§  625,  626.  Rights  of  married  women  to  property  at  common  law  and  in  equitj'. 

§  627.  Riglit  of  a  married  woman  to  a  settlement  out  of  iier  equitable  property. 

§  628.  When  proceedings  nmst  be  taken  to  obtain  a  settlement. 

§  629.  How  the  proceedings  may  be  taken. 

§  630.  A  trustee  may  decline  to  pay  to  the  husband  before  a  settlement  is  made. 

§  631.  In  case  of  tlie  marriage  of  a  ward  of  court. 

§  632.  Against  whom  the  equity  of  a  settlement  will  be  enforced. 
§§  633,  634.  To  what  property  a  wife's  right  to  a  settlement  extends. 

§  635.  Where  a  wife  is  entitled  to  a  second  settlement. 

§  636.  Wiiat  amount  will  be  settled  on  a  wife. 

§  637.  Wiiere  a  husband  refuses  to  make  a  settlement. 

§  638.  Distinction  between  survivorship  and  the  right  to  a  settlement. 

§  639.  Whether  a  husband  has  reduced  a  wife's  choses  in  action  to  possession. 
§§  640-642.  What  is  and  what  is  not  a  reduction  to  possession. 

§  643.  Ell'ect  of  a  reduction  to  possession  by  the  husband. 

§  644.  Husband  entitled  to  joint  propert}'. 


Till  CONTENTS   OF    VOLUME   II. 

§  645.   A  settlement  extends  to  children,  when. 

§  646.  The  right  of  a  married  woman  to  hold  property  to  her  separate  use. 

§  647.  How  a  trust  for  her  separate  use  may  be  created. 

§  648.  The  words  that  create  a  separate  use. 

§  649.  Words  that  do  not  create  a  separate  use. 

§  650.  State  of  the  authorities,  and  the  general  rule  as  to  her  separate  use. 

§  651.  Must  be  for  the  separate  use  of  the  wife  alone. 

§  652.  Changeable  rights  of  a  woman  to  property  settled  to  her  separate  use. 

§  653.  To  what  marriages  the  separate  use  extends. 

§  654.  How  a  married  woman  raay  deal  with  her  separate  property. 

§  655.  General  rule  as  to  the  right  of  a  married  woman  to  deal  with  her  separate 

estate. 
§  656.  As  to  real  estate. 
§  657.  Power  to  contract  debts. 
§§  658,  659.  How  far  her  contracts  bind  her  separate  estate. 
§§  660,  661.  Kules  in  England  and  the  various  States. 
§  662.  Married  woman  not  personally  bound  by  her  contracts. 
§  663.  The  principles  that  apply  to  a  wife's  separate  estate. 
§  664.  Savings  and  accumulations  out  of  her  separate  estate. 
§  665.  Rights  of  the  wife  against  her  husband's  estate  where  he  receives  the  income  of 

her  separate  estate. 
§  666.  If  a  husband  receives  her  separate  estate,  he  becomes  a  trustee. 
§  667.  Riglit  of  a  married  woniftn  to  the  possession  of  her  separate  estate. 
§  668.  Disposition  of  a  wife's  separate  estate  by  will,  descent,  or  otherwise. 
§  669.   Where  a  breach  of  trust  is  committed  by  a  married  woman  or  by  her  procure- 
ment. 
§  670,  671.  Restraints  upon  anticipation  or  alienation  by  a  married  woman. 
§  672,  673.  Deed-;  of  separation  bet^veen  husband  and  wife. 
§  674.  Riglits  of  the  wife  under  deeds  of  separation. 

§  675.  Statutes  of  various  States  in  relation  to  the  rights  of  married  women  to  property, 
§  676.  These  statutes  do  not  af!'ect  rights  which  were  vested  before  the  passage  of  the 

statutes. 
§  677.  Nor  do  they  affect  settlements  made  before  the  statutes. 
§  678.  Husband  and  wife  may  be  agents  for  each  other.     How  far  a  husband  maj-  deal 

with  his  wife's  separate  property. 
§  679.  A  wife  may  give  her  separate  property  to  her  husband. 
§  680.  Separate  estate  for  married  women  under  the  statutes  governed  by  same  rules 

that  governed  separate  estates  under  settlements. 
§  681.  Right  of  husband  to  curtesy;  cannot  convey  his  right. 
§  682.  Rights  of  married  women  to  make  wills  under  the  statutes;  rights  of  the  husband 

in  the  absence  of  a  will. 
§  683.  Eights  of  married  women  to  be  trustees,  &c.,  and  to  sue  and  be  sued. 
§  684.  A  married  woman  may  sell  her  personal  property. 
J  685.  But  cannot  convey  her  real  estate  without  the  consent  of  her  husband. 
§  686.  The  statutes  only  refer  to  tlie  property  of  married  women.    If  they  have  no 

propert}',  their  rights  are  not  altered. 


CHAPTER   XXIII. 

Trusts  for  Charitable  Uses 687-748 

§  687.  General  remarks  upon  charitable  trusts. 
§  688.  The  origin  of  charitable  trusts. 
§  689.  History  of  charitable  trusts. 


CONTENTS    OF    VOLUME    II.  IX 

§  690.  Whether  they  originated  in  the  civil  law. 
§  691.  Early  English  legislation  upon  charities. 
§  692.  Statute  43  Eliz.  c.  4.  1601. 
§§693,694.  Importance   of  the  statute,  and  whether  the  equity  jurisdiction  of  courts 
over  charities  originated  in  it. 
§  695.  "Whether  the  statute  ousted  the  courts  of  their  original  jurisdiction. 
§  696.  Three  things  accomplished  hy  the  statute. 
§  697.  Definitions  of  a  public  charity  or  a  charitable  use. 
§§  698,  699.  Gitts'for  the  poor,  their  construction  and  application. 
§  700.  Charitable  gifts  for  educational  purposes. 
§  701.  Gifts  for  religious  purposes  are  charitable. 

§  702.  Gifts  for  religious  purposes  outside  of  the  Established  Church  in  England. 
§  703.  Gifts  to  parish  ministers,  whether  charitable  or  not. 
§  704.  Gifts  for  public  works. 

§  705.  Gifts  for  general  and  indefinite  public  purposes. 
§  706.  Whether  gifts  for  tombs,  vaults,  or  burying-grounds  are  charitable. 
§  707.  The  source  of  the  charitable  gift  is  immaterial. 
§  708.  Incomplete  charitable  gifts. 

§  709.  The  general  rules  of  construction  applied  to  charitable  gifts. 
§  710.  Gifts  which  are  not  charitable. 
§  711.  Where  a  charitable  purpose  and  a  purpose  not  charitable  are  joined;  and  other 

not  charitable  purposes. 
§  712.  The  cases  of  Omanney  v.  Butcher  and  Williams  v.  Kershaw,  and  criticisms  upon 
them. 
-  §  713.  Where  gifts  are  too  uncertain  to  be  administered  as  charitable. 
§  714.  Where  the  sum  to  be  applied  is  uncertain,  as  well  as  the  objects  to  which  it  is 

to  be  applied. 
§  715.  Where  the  purpose  of  the  gift  is  contrary  to  law. 

§  716.  Rules  for  administering  charities  must   be  applied    according  to  the  subject- 
matter. 
§  717.  Courts  can  exercise  only  judicial  powers. 
§  718.  Distinction  between  judicial  powers  and  prerogative  powers  exercised  by  the 

Lord  Chancellor. 
§  719.  Charities  administered  by  the  judicial  powers  of  courts,  and  by  the  prerogative 

of  the  king. 
§  720.  Cases  of  charities  administered  by  the  judicial  powers  of  the  court. 
§  721.  Whether  new  trustees  appointed  by  courts  can  exercise  the  powers  and  dis- 
cretion conferred  by  a  donor. 
§  722.  Where  courts  can  carry  a  charity  into  effect,  although  no  trustees  are  appointed 

b}'  the  donor. 
§  723.   Cypres  as  a  rule  of  construction,  and  where  it  may  be  applied. 
§§  724,  725.  Cases  where  the  rule  of  construction  cy  jjrcs,  has  been  applied. 
§  726.  Where  tlie  purpose    of   a  gift  is  one  particular  charity  there  can  be  no  con- 
struction cypi-es,  if  that  particular  purpose  fail. 
§§  727,  728.  The  doctrine  of  cypres  a  rule  of  construction. 
§  729.  Cases  in  the  United   States  where  donations  to  charity  would  not  be  carried 

into  effect. 
§  730.  Charitable  gifts  to  voluntary  societies,  and  other  indefinite  trustees. 
§  731.  Courts  will  follow  the  intention  of  the  donor  in  appointing  trustees  to  carry  a 

charitable  gift  into  effect. 
§  732.  Uncertainty  not  an  objection  to  a  charitable  trust,  if  there  is  a  legal  mode  of 

reducing  it  to  that  degree  of  certainty  reciuired  by  the  trust. 
§§  733,  734.  A   charitable  gift  must  be  accepted  and  carried  into  effect  as  made,  and 
cannot  be  altered  or  diverted. 
§  735.  Trustees  cannot  be  removed  and  changed  by  courts  for  the  mere  convenience  of 
parties. 


X  CONTENTS    OP    VOLUME   II. 

§§  736,  737.  The  rules  against  perpetuities  do  net  apply  to  charitable  trusts. 

§  738.  Gifts  for  charitable  purposes  may  be  accumulated  beyond  the  period  allowed  in 
private  bequests. 

§  739.  How  far  courts  will  aid  defective  conveyances  to  charitable  uses. 

§  740.  Whether  assets  will  be  marshalled  to  pay  charitable  legacies. 

§  741.  A  charitable  bequest  may  be  paid  over  to  foreign  trustees  if  thej'  will  re- 
ceive it. 

§  742.  Acts  of  incorporation  and  visitatorial  powers. 

§  743.  Where  charitable  gifts  are  made  to  an  old  corporation. 

§  744.  Remedies  for  a  breach  of  trust  by  trustees.     No  reversion  to  heirs  of  the  donor. 

§  745.  Whether  the  statute  of  limitations  runs  against  a  charitable  trust. 

§  746.  Pleadings  in  charity  suits  need  not  be  so  accurate  and  formal  as  in  suits  to 
enforce  private  trusts. 

§  747.  As  to  costs  in  charity  suits. 

§  748.  Charitable  trusts  in  the  several  States.  The  cases  collected  and  commented  on 
in  a  note. 

CHAPTER  XXIV. 

Trustees  for  Bondholders  of  Railways  axd  other 

Corporations 749-7G3 

§  749.  Nature  of  such  trusts. 

§  750.  Character  of  such  trusts  in  England. 

§  751.  Character  of  the  mortgages  at  common  law. 

§  752.  Where  an  act  of  parliament  confers  the  only  power  of  borrowing. 

§  753.  Where  a  person  to  whom  a  mortgage  is  made  assigns  a  part  of  the  mortgage 
debt. 
§§  754,  755.  Power  of  corporations  to  mortgage  their  general  property. 

§  756.  The  franchise  of  being  a  corporation  cannot  be  aliened  or  mortgaged. 

§  757.  Whether  the  franchise  of  doing  the  business  of  the  corporation  can  be  mort- 
gaged. 

§  758.  The  power  to  mortgage  need  not  be  given  in  express  words. 

§  759.  Whether  the  mortgage  embraces  property  subsequently  acquired. 

§  760.  General  duties  of  trustees  for  bondliolders. 

§  761.  How  they  may  foreclose  the  mortgage. 
§§  762, 763.  Duties  and  responsibilities  when   possession  is  taken   of   the   mortgaged 
property. 

CHAPTER   XXV. 
Trustees  for  Sale 764-787 

§  764.  Trustees  may  not  sell  without  an  express  or  implied  power. 

§  765.  Character  of  powers  to  sell. 

§  766.  Form  of  such  powers. 

§  767.  A  power  of  sale  is  not  a  "  usual  "  power. 
§§  768,  769.  The  extent  of  such  powers. 

§  770.  How  such  powers  are  to  be  executed. 
§§  771-773.  Within  what  time  such  powers  may  be  executed. 

§  774.  In  what  manner  trustees  may  sell. 

§  775.  Tenant  for  life  as  agent  of  the  trustees. 

§  776.  Rights  of  the  tenant  for  life. 


CONTENTS   OF   VOLUME   II.  XI 

§§  777,  778.  Where  they  are  to  sell  with  the  consent  of  the  cestui  que  trust  or  tenant  for 
life. 

§  779.  Cannot  delegate  the  power  of  sale. 
§§  780,  781.  Whether  thej'  may  sell  at  private  sale  or  at  auction. 

§  782.  What  notice  must  be  given. 
§§  783-785.  The  power  must  be  exercised  as  given. 

§  786.  As  to  conditions  of  the  sale. 

§  786  a.  Whether  sale  may  be  on  credit/ 

§  787.  Who  may  make  a  good  title.  / 

CHAPTER  XXVI. 

Rights  and  Duties  of  Third  Persons  in  Relation 
TO  THE  Trust  Estate,  and  their  Duty  of  seeing 
to  the  Application  of  the  Purchase-money    .     .     788-815 

§  788.  State  of  the  questions. 

§  789.  The  different  powers  of  trustees. 

§  790.  General  rule  respecting  the  person  to  whom  money  or  property  must  be  passed. 

§  791.  How  the  general  rule  may  be  controlled.     Bj'  express  words. 

§  792.  By  powers  of  attorney. 

§  793.  By  implication. 

§  794.  Where  the  funds  are  to  be  held  and  invested  by  the  trustees. 

§  795.  Where  the  trust  is  to  pay  d-  bts  and  legacies. 

§  796.  Where  a  particular  debt  to  be  paid. 

§  797.  Discussion  of  the  rule. 

§  798.  Rule  in  the  United  States. 

§  799.  Where  trustees  have  the  light  to  vary  the  securities. 

§  800.  The  effect  of  collusion  or  fraud. 

§  801.  The  intention  of  the  testator  must  be  sought  at  the  time  the  will  was  made,  and 

is  not  affected  by  a  change  of  circumstances. 
§§  802-805.  Who  has  power  to  sell  where  testator  makes  charges  upon  his  estate,  and 

gives  no  power  of  sale. 
§  806.  Trust  for  sale  a  joint  office,  receipts  must  be  joint. 
§  807.  Substituted  trustees  may  give  receipts. 
§  808.  Power  to  sign  receipts  after  a  breach  of  trust. 
§  809.  Rules  as  to  executors  in  respect  to  personal  estate. 
§  810.  Cannot  collusively  dispose  of  personal  estate. 
§  811.  Where  the  executor  has  an  interest  as  legatee. 
§  812.  Rules  in  United  States  where  bonds  are  required. 
§  813.  Rules  as  to  agent.^. 

§  814.  Rule  as  to  those  standing  in  fiduciary  relations. 
§  815.  Within  what  time  c  mrts  will  give  relief. 

CHAPTER  XXVn. 

Rights  and  Remedies  of  the  Cestuis  Que  Trust  in 

Relation  to  the  Trust  Property 816-853 

§  816.  Right  of  cestuis  que  trust  to  an  injunction. 
§  817.  Right  to  the  removal  of  the  trustees. 
§  818.  Where  a  receiver  may  be  appointed. 


Xll  CONTENTS   OF  VOLUME   II. 

§  819.  Where  a  receiver  will  not  be  appointed. 

§  820.  Where  a  receiver  will  be  discharged. 

§  820  a.  A  sale  may  be  decreed. 

§  821.  Trustees  must  furnish  clear  accounts  to  the  cestuis  que  trust. 
§§  822,  82-3.    Cestuis  que  trust  have  the  right  to  the  production  of  books  of  accounts  and 
documents. 

§  824.  The  fund  may  be  paid  into  court  upon  suit  of  cestuis  que  trust. 

§  825.  Within  what  time  it  must  be  paid  in. 

§  826.  Upon  what  state  of  facts  it  will  be  ordered  to  be  paid  in. 

§  827.  A  case  for  payment  into  court  must  be  clearly  stated  in  plaintiff's  bill,  and  not 
denied  in  the  answer. 

§  828.    Cestuis  que  trust  may  follow  the  trust  fund  into  the  hands  of  third  persons. 
§§  829,  830.  When  a  purchaser  is  protected  and  when  not. 

§  8.51.    Choses  in  action  may  be  followed. 

§  832.  Where  a  borrower  of  the  trust  fund  has  notice. 
§§  833,  8.34.  Notice  of  doubtful  equities. 
§§  835,  836.   Cestuis  que  trust  may  follow  the  trust  fund  into  other  property  in  the  hands 

of  the  trustees. 
§§  837,  838.  Where  trust  property  is  mixed  with  a  trustee's  own  property. 

§  839.  Parol  evidence  admissible  to  trace  and  identify  the  fund. 

§  840.  Statute  of  limitations  does  not  apply. 

§  841.  Evidence  of  the  identity  of  the  fund. 

§  842.  Lien  in  case  the  trust  fund  is  a  part  only  of  an  estate. 

§  843.  Personal  liability  of  the  trustee  for  a  breach  of  trust  and  the  remedy. 

§  844.   Cestuis  que  trust  may  compel  trustee  to  replace  the  property. 

§  845.  Trustee  must  make  up  all  losses  from  his  neglect. 

§  846.  Third  persons  who  benetit  or  advise  a  breach  of  trust  may  be  made  responsible. 

§  847.  Not  material  that  trustees  have  not  benefited  by  a  breach  of  the  trust. 

§  848.  Liability  of  cotrustees  and  cestuis  que  trust  concurring  in  a  breach  of  trust. 

§  849.  Cestuis  que  trust  concurring  in  breach  of  trust  are  estopped. 

§  850.    Cestuis  que  trust  can  have  no  relief  if  they  acquiesce  in  a  breach  of  trust. 

§  851.    Cesluis  que  tinist  may  release  or  waive  a  breach  of  trust.     Conditions  of  a  valid 
release. 

§  852.  Other  ways  in  which  a  breach  of  trust  may  be  discharged. 

§  853.  Parties  interested  alone  can  release  a  breach  of  trust. 


CHAPTER   XXVIII. 

The    Statute  op  Limitations,  Lapse   of  Time,  and     8o4-872 
Public  Policy  as  affecting  Trusts 854-872 

§  854.  Three  bars  in  equity. 

§  855.  The  statute  bar  at  law  and  in  equity  the  same. 
§  856.  When  the  statute  begins  to  run. 
§  857.  The  statute  an  absolute  bar  where  it  applies. 
§§  858,  859.   Whether  the  cestui  que  trust  is  barred  by  the  neglect  of  the  trustee. 
§  860.  Where  the  trustee  conveys  to  a  third  person  in  breach  of  the  trust. 
§  861.  Where  there  is  fraud. 

§  862.  How  the  statute  bar  may  be  taken  advantage  of. 
§  863.  The  statute  bar  as  between  trustee  and  cestui  que  trust. 
§  864.  When  the  statute  will  begin  to  nm  as  between  trustee  and  cestui  que  t}-usi. 
§  865.  Whether  the  statute  applies  to  constructive  trusts. 

§  866.  What  acts  will  be  presumed  to  have  been  done  after  a  great  length  of  time. 
§  .867.  When  a  person  is  ignorant  of  his  rights. 


CONTENTS    OF    VOLUME   II.  XUl 

§  868.  How  lapse  of  time  may  be  taken  advantage  of. 

§  869.  Where  public  policy  is  a  bar  to  the  litigation  of  old  and  stale  claims. 
§  870.  Where  acquiescence  may  bar  a  right  or  claim. 
§§  871,  872.  How  far  back  accounts  for  mesne  profits  will  be  ordered. 

CHAPTER  XXIX. 

Actions  in  Respect  to  Trust   Property — Parties 

—  Pleading  —  Practice 873-890 

§§  873,  874.  Both  the  cestuis  que  trust  and  the  trustees  are  required  to  be  joined  when 
the  action  is  between  strangers  and  the  trust  estate. 

§  875.  Where  the  suit  is  between  the  cestuis  que  trust  and  the  trustees. 

§  876.  Where  the  cestuis  que  trust  bring  an  action  against  the  trustees,  all  the  trustees 
ought  to  be  joined  as  defendants. 

§  877.  ~^Vhere  third  persons  ought  to  be  joined  with  the  trustees. 

§  878.  Where  courts  will  allow  a  suit  to  go  on,  though  all  the  trustees  are  not  joined. 

§  879.  Where  the  trustees  are  guilty  of  a  tort. 

§  880.  Where  a  wife  commits  a  breach  of  trust,  her  husband  must  be  joined. 

§  881.   Cestuis  que  trust  ought  all  to  be  joined  as  plaintiffs  when  they  bring  an  action 
against  trustees. 

§  882.  Where  they  need  not  all  be  joined. 

§  883.  Where  the  court  will  allow  the  suit  to  go  on,  although  the  cestuis  que  trust  are 
not  all  joined. 

§  884.  Where  suits  are  brought  between  cotrustees. 

§  885.  Where  the  parties  are  numerous. 
§§  886,  887.  All  the  parties  in  the  same  interest  ought  to  be  joined  on  the  same  side. 

§  888.  Trustees  ought  to  join  in  their  answer. 

§  889.  Married  woman  ought  to  join  her  husband  in  her  answer,  but  may  answer  sepa- 
rately. 

§  890.  Wliat  allegations  cestuis  que  trust  should  make  in  their  bill  against  trustees. 

CHAPTER  XXX. 
Costs 891-903  a 

§  891.  Costs  as  between  strangers  and  trustees. 

§  892.  Costs  are  under  the  control  of  courts  of  equity. 

§  893.  Therefore  no  general  rule  can  be  stated. 

§  894.  Trustees  who  faithfully  perform  their  duty  may  generally  have  their  costs  as 

between  solicitor  and  client. 
§  895.  If  the  trustee  is  a  solicitor,  he  can  make  no  charge  for  professional  services;  but 

the   court  will  order  costs  to  be  taxed  in  the  usual  manner,  and  leave  the 

proper  officer  to  apply  them. 
§  896.  Where  suits  are  brouglit  to  create  a  trust  fund,  the  trustees  may  be  ordered  to 

pay  costs,  or  they  will  be  allowed  costs  only  as  between  party  and  party. 
§  897.  Where  a  trustee  neglects  to  appear  or  to  ask  for  his  costs. 
§  898.  Where  a  trustee  may  have  his  costs,  although  the  decree  is  against  him. 
§  899.  Trustees  may  have  their  costs,  whether  plaintiffs  or  defendants. 
§§  900,  901.  Where  the  trustees  are  in  fault,  thej'  cannot  have  costs. 
§  902.  If  trustees  commit  a  breach  of  trust,  tliey  must  pay  the  costs  of  correcting  it. 
§  903.  If  trustees  are  refused  their  costs,  or  are  ordered  to  p.iy  costs,  they  cannot  have 

an  allowance  for  them  in  their  accounts. 
903  a.  Out  of  what  fund  costs  will  be  decreed. 


XIV  CONTENTS    OF   VOLUME   II. 

CHAPTER   XXXI. 

Allowances  and  Compensation  to  Trustees  .    .     .     904-919 

§  904.  In  England,  trustees  can  have  no  compensation  for  time,  trouble,  and  services. 

§  905.  Exception  as  to  estates  abroad. 

§  906.  Nor  when  they  carry  on  business  as  trustees. 

§  907.  A  trustee  has  a  lien  on  the  trust  estate  for  his  expenses. 

§  908.  From  what  fund  the  expenses'are  to  be  paid. 

§  909.  Trustee  may  call  upon  cestui  que  trust  for  expenses  if  the  trust  fund  is  insuffi- 
cient. 

§  910.  The  general  rule  as  to  an  allowance  of  his  expenses. 

§  911.  The  trustee  must  keep  an  account  of  his  expenses. 

§  912.  They  may  employ  necessary  assistants. 

§  913.  The  expenses  may  depend  upon  the  character  of  the  trust,  and  the  power  and 
duties  of  the  trustees. 

§  914.  Trustees  will  be  allowed  for  all  accidental  losses  which  happen  without  their 
fault. 

§  915.  For  what  disbursements  trustees  may  be  allowed. 

§  916.  The  English  rule  as  to  compensation  for  services,  time,  and  trouble,  not  acted 
upon  in  the  United  States. 

§  917.  Trustees  entitled  to  reasonable  compensation.     Rules  in  the  various  States. 

§  918.  Rules  and  statutes  in  the  various  States.    Note. 

§  919.  Practice  in  various  States. 

CHAPTER   XXXn. 

Determination  of  the  Trust  and  Distribution  of 

the  Trust  Fund 920-933 

§  920.  Trusts  may  be  terminated  by  decree  upon  the  consent  of  all  parties. 

§  921.  How  the  responsibility'  of  a  trustee  may  be  terminated. 

§  922.  Whether  trustees  are  entitled  to  a  release  and  discharge. 

§  923.  Effect  of  a  release  or  discharge. 

§  924.  Where  the  fund  is  distributed  under  a  decree. 

§  925.  If  trustees  paj'  to  new  trustees,  they  may  insist  upon  a  release. 

§  926.  Trustees  must  see  that  the  fund  reaches  the  proper  persons. 

§  927.  Trustees  are  responsible  for  any  mistake  in  that  respect. 

§  928.  Right  of  the  trustees  to  a  decree  of  the  court. 

§  929.  Trustees  maj'  pay  the  fund  to  agents  and  attorneys,  but  they  must  see  to  the 

validity  of  their  authority  to  receive  it. 
§  930.  To  what  persons  they  may  pay. 
§§  931,  932.  Remedies  in  case  they  pay  to  the  wrong  parties. 
§  933.  The  costs  of  distributing  the  trust  property  must  be  paid  out  of  the  fund. 


LAW    OF     TRUSTS. 


CHAPTER  XYI. 


POWERS  OF  TRUSTEES. 

§  473.  Division  of  powers. 

§  474.  Powers  where  the  trust  is  before  the  court. 

§  475.  Powers  in  law  and  in  equity. 

§  476.  General  power  of  trustees. 

§  476  a.  Power  to  ask  direction  of  court. 

§477.  General  power  of  repairing. 

§  478.  Powers  of  superintendents  of  public  works. 

§  479.   Of  executors  to  close  up  testator's  establishment. 

§  480.  Power  of  executor  to  appropriate  a  legacy. 

§  481.  Power  to  waive  the  statute  of  limitations. 

§  482.  Power  to  release  or  compromise  a  debt. 

§  483.  Power  as  to  equity  of  redemptions. 

§  484.  General  power  of  leasing. 

§  485.  Power  of  trustee  to  reimburse  himself. 

§  486.  Powers  of  trustees  of  trading  companies. 

§  487.  Power  of  insuring. 

§  4S8.  Speciiil  powers. 
§§  4S9,   490.  Division  and  definition  of  special  powers. 
§§  491,  492.  Difference  between  the  gift  of  a  power  and  of  an  estate. 

§  493.  Where  power  may  be  executed  by  survivors. 

§  494.  Where  by  heirs  or  devisees  or  assigns. 

§  495.  Where  by  assigns,  and  where  not. 

§  496.  Where  the  power  is  matter  of  personal  confidence. 

§  497.  Where  a  power  may  be  executed  by  last  survivor. 

§  498.  When  a  power  must  be  executed. 

§  499.  By  what  persons  powers  may  be  executed. 

§  500.  AVhether  by  administrators  with  the  will  annexed. 

§  501.  By  whom  to  be  executed  when  no  person  is  named. 

§  502.  By  whom  where  a  trustee  refuses  to  accept. 

§  503.  Whether  the  power  goes  with  the  estate. 

§  504.  Wiio  can  execute  where  an  estate  is  assigned. 

§  505.  Powers  annexed  to  an  estate  survive  with  the  estate. 

§  506.  Where  a  power  ma\'  be  contrary  to  the  rule  against  perpetuities. 

§  507.  Discretionary-  powers,  where  and  where  not. 

VOL.  II.  1 


2  POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

§  508.  Division  of  discretionary  powers  and  their  execution. 

§  509.  Power  of  varying  securities. 
§§  510,  511.  Control  of  courts  over  the  exercise  of  discretionary  powers- 

§  511  a.  Courts  do  not  favor  uncontrollable  powers. 

§  511  b.  How  powers  must  be  executed. 

§  511  c.  Whether  it  is  necessary  in  the  execution  of  a  power  to  refer  to  it. 

§  512.  Powers  of  trustees  to  consent  to  a  marriage. 

§  513.  If  the  property  once  vests  in  cestui  que  trust,  the  power  is  gone. 

§  514.  Where  consent  is  a  condition  to  the  vesting  of  the  estate. 

§  515.  Power  in  general  restraint  of  marriage,  void. 

§  516.  A  limitation  until  marriage  with  consent,  good. 
§§  517,  518.  When  and  how  the  power  may  be  exercised. 

§  519.  Courts  will  control  the  exercise  of  such  a  power. 

§  473.  Where  an  express  trust  is  created,  certain  powers  are 
conferred  upon  the  trustees  to  be  executed  by  them.  These 
powers  are  divided  in  the  first  instance  into  general  and  special 
powers.  General  powers  are  those,  which,  by  construction  of 
law,  are  incident  to  the  office  of  trustee.  Every  trustee  must 
have  them,  whether  they  are  named  or  not  in  tlie  instrument 
creating  the  trust,  in  order  that  he  may  perform  the  duties 
imposed  upon  him.  Special  powers  are  such  special  directions 
and  authority  as  the  settlor  gives  to  his  trustees  in  order  to 
carry  out  his  special  purposes  in  instituting  the  trust.  Special 
powers  are  again  divided  into  mere  naked  powers,  —  to  be 
exercised  by  trustees  at  their  sole  discretion,  and  according  to 
their  own  judgment,  and  to  be  for  ever  discharged  and  obsolete, 
if  the  trustees  do  not  see  fit  to  execute  them,  —  and  powers  in 
the  nature  of  a  trust.  These  latter  powers  are  sometimes 
coupled  with  an  interest,  and  sometimes  not.  But  if  they  are 
in  the  nature  of  a  trust,  they  are  imperative  on  the  trustees, 
and  must  be  executed.  If  the  trustees  neglect  or  refuse  to 
execute  them,  or  die  without  performing  them,  courts  of  equity 
will  execute  them,  or  compel  them  to  be  executed.  In  consid- 
ering this  subject,  the  rules  governing  mere  naked  powers,  and 
powers  in  the  nature  of  a  trust,  will  first  be  stated.  The  nature 
of  general  powers,  and  the  rules  that  regulate  their  performance, 
will  next  be  noticed.  Special  powers,  and  the  rules  applicable 
to  them,  will  then  be  discussed,  and  the  time  when,  and  the 
persons  by  whom,  they  may  be  executed.     It  must  be  observed, 


§§  473,  474.]         GENERAL   POWERS    OF   TRUSTEES.  3 

that,  in  all  cases,  powers  must  be  construed  according  to  the 
intention  of  the  party  creating  them,  if  such  intention  is  com- 
patible with  the  rules  of  law  ;  and  such  intention  must  be  deter- 
mined from  the  instrument.^ 

§  474.  It  must  be  observed,  in  the  first  instance,  that  what- 
ever powers  may  be  possessed  by  trustees,  whether  general  or 
special,  if  the  trust  is  before  the  court  and  a  decree  has  been 
made,  the  powers  of  the  trustees  are  thenceforth  so  far  changed 
that  they  must  have  the  sanction  of  the  court  for  all  their  acts.^ 
They  cannot  begin  nor  defend  any  suit  without  leave  of  the 
court  ;^  they  cannot  sell,^  nor  make  repairs,^  nor  make  invest- 
ments,^ nor  pay  debts  without  consulting  the  court."  But 
there  must  be  a  decree  in  the  case  ;  for  if  there  is  nothing  before 
the  court  but  a  bill,  it  may  be  dismissed  at  any  time,  and  the 
authority  of  the  trustees  left  as  it  was  before  the  bill  was  filed.^ 
Even  in  the  case  of  a  mere  bill,  the  trustees  ought  to  consult 
the  court  in  important  matters,  and  before  incurring  large 
expenses.^  But  even  after  a  decree,  which  brings  all  the  mut- 
ters of  the  trust  into  the  jurisdiction  of  the  court,  the  trustees 
must  not  neglect  the  duties  imposed  upon  their  office  ;  for  if 
they  should  allow  a  policy  of  insurance  to  exj)ire  for  want  of 
care,  they  would  be  responsible.^*^  And  they  should  still  collect 
the  personal  assets,  and  prevent  them  from  wasting,  and  they 
may  give  receipts  for  moneys  paid  them.^^ 

*  Guion  V.  Pickett,  22  Miss.  77 ;  Kerr  v.  Verner,  66  Penn.  St.  326. 

*  Mitchelson  v.  Piper,  8  Sim.  6-1;  Shewen  v.  Vanderhorst,  2  R.  &  M. 
75;  1  R.  &  M.  347;   Wartman  v.  Wartman,  Taney,  362. 

2  Jones  V.  Powell,  4  Beav.  96  ;  Lewin  on  Trusts,  425. 

*  Walker?;.  Smallwood,  Amb.  676  ;  Annesley  v.  Aslmrst,  3  P.  Wms.  282. 

*  Anon.  10  Ves.  104. 

«  Widdowson  v.  Duck,  3  Mer.  494. 

^  Mitchelson  v.  Piper,  8  Sim.  64;  King  v.  Roe,  L.  J.  May,  1858;  Irby 
V.  Irby,  24  Beav.  525 ;  Jackson  v.  Woolly,  12  Sim.  18. 

8  Cafe  t'.  Bent,  3  Hare,  249;  Neeves  v.  Burrasc,  U  Q.  B.  504. 

s  Attorney-General  v.  Clark,  1  Beav.  467 ;  Cafe  v.  Bent,  3  Hare,  249 ; 
Talbott  V.  Marsbfield,  L.  R.  4  Eq.  661. 

'"  Garner  v.  ^loore,  3  Drew.  277. 
^'  Lewin  on  Ti-usts,  426. 


4  GENERAL   POWERS    OF    TRUSTEES.  [CHAP.  XVI. 

§  475.  In  a  court  of  law,  the  trustee  is  the  absolute  owner 
of  the  estate,  and  he  can  exercise  all  the  powers  of  ownership ; 
he  can  sue  and  be  sued,^  even  though  the  cestui  que  trust  is 
dead,2  and  must  act  in  many  respects  as  the  owner  ;  and  so  he 
must  be  treated  by  others  as  the  sole  proprietor  ;  but  in  equity 
the  cestui  que  trust  is  the  owner,  and  the  question  in  equity  is, 
how  far  the  trustee  can  act  without  exceeding  his  powers,  and 
rendering  himself  responsible  to  the  cestui  que  trust.  If  the 
trust  is  a  simple  or  passive  one  to  allow  the  beneficiary  to 
occupy  and  enjoy  the  estate,  the  trustee  has  no  power  or  duty 
to  perform,  except  at  the  instance  of  the  cestui  que  trust.  In 
trusts  of  a  more  particular  and  active  kind,  the  general  power 
of  the  trustee  is  limited  to  the  exact  performance  of  the  duty 
imposed  upon  him.  The  duty  and  power  given  in  such  trusts 
must  be  strictly  performed.  There  is  no  room  for  discre- 
tion or  divergence  from  the  particular  directions  contained  in 
the  instrument,  as  where  money  was  left  to  a  trustee  to  be  laid 
out"  in  lands,  he  had  no  discretion  to  purchase  land  with  a  part 
of  the  moneys,  and  to  expend  the  remainder  in  repairs  and 
improvements.^ 

§  476.  But  there  are  circumstances  where  a  trustee  must  exer- 
cise the  discretionary  powers  of  an  absolute  owner,  otherwise 
great  loss  might  happen  to  the  estate.  The  exigencies  of  the 
moment  may  demand  immediate  action.  The  cestuis  que  trust 
may  be  numerous  and  scattered,  or  under  disability,  or  not  in 
existence,  so  that  their  sanction  cannot  be  obtained,  or  cannot 
be  obtained  without  great  inconvenience.  The  alternative  of 
applying  to  the  court  may  be  attended  with  considerable  or  dis- 

'  Harrison  v.  Rowan,  ^  Wash.  C.  C.  202. 

2  Slevin  V.  Brown,  32  Mo.  176. 

'  Bostock  V.  Blakeney,  2  Bro.  Ch.  653 ;  Caldecott  v.  Brown,  2  Hare, 
145;  Wormley  V.  Worniley,  8  Wheat.  421;  Coonrod  v.  Coonrod,  6  Ohio, 
114;  Locke  v.  Lomas,  5  De  G.  &  Sm.  326  ;  Pinnell  v.  Hallett,  2  Ves.  276 ; 
Lewis  V.  Hill,  1  Ves.  275;  Supp.  Ves.  Sr.  344;  Ringgold  v.  Ringgold,  1 
Har.  &  Gil.  11;  Booth  v.  Purser,  1  Ir.  Eq.  37  ;  Beatty  v.  Clark,  20  Gal.  11. 


§§  475-476  a.~\     general  powers  op  trustees.  5 

proportionate  expense,  and  perhaps  delay,  so  that  the  oppor- 
tunity is  gone  and  lost  for  ever.  It  is  therefore  evident  that  it 
is  for  tlie  interest  of  the  cestuis  que  trust  that  the  trustee 
should  have  a  reasonable  discretionary  power  to  be  exercised 
in  emergencies,  though  no  such  power  is  given  in  the  instru- 
ment of  trust.^  And  so  it  is  a  rule  of  equity  that  a  trustee 
may  safely  do  that,  without  a  decree  of  the  court,  which  the 
court,  on  a  case  made,  would  order  or  decree  him  to  do.^  But 
there  is  always  danger  that  courts  may  not  view  the  matter  in 
the  same  light  as  the  trustee,  and  so  fail  to  sanction  by  decree 
what  he  has  taken  the  responsibility  of  doing  under  a  supposed 
necessity.^  It  is  said  in  some  cases,  that,  if  it  is  doubtful  what 
ought  to  be  done  under  the  circumstances  and  the  terms  of  the 
trust,  the  trustee  may  give  notice  to  the  beneficiary  that  he 
intends  to  act  in  a  certain  manner,  and  unless  the  cestui  que 
trust  interferes  to  prevent  it,  the  court  will  not  hold  the  trustee 
responsible  if  the  act  turns  out  disadvantageous.^  Trustees 
may  waive  all  matters  of  mere  form  which  saves  circuity, 
trouble,  and  expense.'^ 

§  476  a.  As  trustees  hold  the  legal  title  for  the  benefit  of  third 
persons,  and  as  the  law  forbids  them  from  making  any  profit 
to  themselves  from  their  management  of,  or  dealing  with,  the 
trust  fund,  so  the  law  protects  them  from  loss  if  they  act 
according  to  law  in  good  faith.  And  in  all  cases  of  doubt  as 
to  what  the  law  is,  and  what  their  conduct  ought  to  be  under 
it,  they  are  entitled  to  instruction  and  direction  from  the  court.*' 

'  Ward  V.  Ward,  2  H.  L.  Ca.  784,  note  to  Rowley  v.  Adams;  Angell  v. 
Dawson,  3  Y.  &  Col.  Ch.  317;  Forshaw  v.  Higginson,  8  I)e  G.,  M.  &  G. 
827 ;  Darke  v.  Williamson,  25  Beav.  622 ;  Harrison  v.  Randall,  9  Hare, 
407. 

»  Hutton  V.  Weems,  12  Gill  &  J.  83;  Co.  Lit.  171  a;  Bath  v.  Bradford, 
2  Ves.  690;  Hutcheson  v.  Hammond,  3  Bro.  Cb.  14.5;  Lee  v.  Brown,  4 
Ves.  369;  Cook  v.  Parsons,  Pr.  Ch.  18.5;  Liwood  v.  Twyne,  2  Ed.  163; 
Terry  v.  Terry,  Gilb.  11;  Sliaw  v.  Borrer,  1  Keen,  576. 

^  Forshaw  v.  Higginson,  3  Jur.  (n.  s.)  476. 

*  Life  Association  v.  Siddal,  3  De  G.,  F.  &  J.  74. 

^  Pell  V.  De  Winton,  2  De  G.  &  Jo.  20. 

«  Wiswell  V.    First   Cong.    Church,     14   Ohio  St.   31  ;    Tillinghast    v. 


6  GENERAL    POWERS   OP   TRUSTEES.  [CHAP.  XVI. 

Whenever  a  case  occurs  which  justifies  the  proceedings,  trustees, 
by  a  bill  setting  forth  the  facts  and  joining  the  proper  parties, 
may  ask  the  court  for  instructions  as  to  their  duties  under  the 
circumstances  in  which  they,  or  the  trust  funds,  are  placed. 
Such  instructions  and  orders,  obtained  without  collusion  or 
fraud,  and  followed  in  good  faith,  will  protect  trustees  from 
loss,  whatever  may  be  the  event.^ 

§  477.  A  trustee,  with  power  to  manage  real  estate  for  a  per- 
son absolutely  entitled,  but  incapable  from  infancy  or  otherwise 
of  giving  any  directions,  may  make  repairs ;  but  he  cannot  go 
beyond  the  necessity  of  the  case,  at  the  peril  of  having  his 
expenses  disallowed.^  If  there  is  a  legal  tenant  for  life  and 
remainder  over,  the  tenant  for  life  cannot  commit  waste,  and 
must  not  suffer  the  buildings  to  fall  into  decay ;  ^  but  whatever 
may  be  the  rights  or  liabilities  of  a  legal  tenant  for  life,  the 
trustee  of  an  equitable  tenant  for  life  cannot  interfere  with  the 
possession  of  the  equitable  tenant  for  not  repairing,  unless  he 
is  clothed  with  the  special  power  of  managing  the  life-estate.^ 

Coggshall,  7  R.  I.  383 ;  Att'y-Gen.  v.  Moore,  4  C.  E.  Green,  503 ;  Wood- 
ruff V.  Cook,  47  Barb.  304;  Goodhue  v.  Clark,  37  N.  H.  551;  Crosby  v. 
Mason,  32  Conn.  482;  Reynolds  v.  Brandon,  3  Heisk.  593;  Peti.  of  Baptist 
Church,  51  N.  H.  424;  Wheeler  v.  Berry,  18  N.  H.  307;  Talbot  v.  Radnor, 
3  My.  &  K.  252;  Goodson  u.  Ellison,  3  Russ.  583;  Knight  v.  Martin,  1  R. 
&  M.  70  ;  Taml.  237 ;  Angier  v.  Stannard,  3  M.  &  K.  566 ;  Curteis  v. 
Candler,  6  Mod.  123;  Campbell  v.  Home,  1  Y.  &  Col.  Ch.  664;  Gardiner 
V.  Downes,  22  Beav.  397;  Merlin  v.  Blagrave,  25  Beav.  137;  Taylor  v. 
Glanville,  3  Mad.  176 ;  Loring  v.  Steineman,  1  Met.  207. 

^  Loring  V.  Steineman,  1  Met.  207;  Tucker  v.  Horneman,  4  De  G.,  M. 
&  G.  395;  Rowland  v.  Morgan,  13  Jur.  23;  Westcott  v.  Culliford,  3  Hare, 
274;  Turner  v.  Frampton,  2  Coll.  336;  Merlin  v.  Blagrave,  25  Beav.  134; 
Boreham  v.  Bignall,  8  Hare,  134 ;  Lee  v.  Delane,  1  De  G.  &  Sm.  1 ;  and 
see  post,  §928. 

2  Bridge  v.  Brown,  2  Y.  &  Col.  Ch.  Ca.  181;  Attorney-General  v. 
Geary,  3  Mer.  513;  Sohier  v.  Eldredge,  103  Mass.  345;  Kearney  v.  Kear- 
ney, 3  Green,  Ch.  59. 

8  Powys  V.  Blagrave,  4  De  G.,  M.  &  G.  458;  Harnett  v.  Maitland,  16 
M.  &  W.'257. 

4  Powys  V.  Blagrave,  Kay,  495 ;  4  De  G.,  M.  &  G.  458;  Se  Skingley,  3 
M.  &  G.  221;  Gregg  v.  Coates,  23  Beav.  33. 


§§  476  a-478.]       GENERAL   POWERS    OP   TRUSTEES.  7 

In  otlier  respects,  tlie  equitable  and  legal  rights  of  tenants  for 
life  and  remainder-men,  and  trustees  for  tenants  for  life  and 
remainder-men,  are  the  same.  Thus  trustees  of  the  life-estate 
may  cut  timber  for  repairs  as  against  the  remainder-man,  if  the 
tenant  for  life  will  consent  that  income  shall  be  applied  for  the 
purpose  of  using  the  timber  for  repairing ;  for  timber  cannot 
be  cut  to  be  sold,  nor  to  pay  for  the  labor  of  repairing.^  The 
repairs  by  a  tenant  for  life  are  his  own  act,  however  beneficial 
to  the  remainder-man,  and  he  cannot  charge  any  thing  upon 
the  inheritance  for  them  ;  ^  nor  will  a  court  direct  any  improve- 
ments to  be  made.^  The  court  said  in  one  case,  that  there 
might  be  an  exception  to  this  rule  ;  as  where  a  fund  was  directed 
to  be  laid  out  in  lands,  and  there  was  already  a  settled  estate 
to  the  same  uses,  it  might  be  more  beneficial  to  apply  part  of 
the  fund  to  prevent  buildings  on  the  settled  estate  from  going 
to  destruction,  than  to  apply  the  whole  fund  to  the  purchase  of 
new  lands ;  *  but  it  would  be  an  extraordinary  case  which 
would  move  the  court  to  create  the  exception.^ 

§  478.  Superintendents  of  public  works  and  similar  quasi 
trustees  may  apply  the  funds  under  their  control  in  opposing 
legislation  which  would  operate  injuriously  to  the  interests 
confided  to  them.  Lord  Cottenham  said  that,  "  every  trustee 
is  to  be  allowed  the  reasonable  and  proper  expenses  incurred 
in  protecting  the  property  committed  to  his  care."  So  they 
have  a  right  to  protect  it  from  indirect  and  probable  injuries  ;'^ 

'  Co.  Lit.  53  b,  54  b;  Gower  v.  Eyre,  Coop.  156 ;  Marlborougli  v.  St.  John, 
6  De  G.  &  Sm.  181. 

2  Hibbert  v.  Cooke,  1  S.  &  S.  552;  Caldecott  v.  Brown,  2  Hare,  144  ; 
Bostock  V.  Blakeney,  2  Bro.  Ch.  653;  Hamer  v.  Tilsley,  Johns.  486;  Dent 
V.  Dent,  30  Beav.  363.  ^  Nain  v.  Majoribanks,  3  Russ.  582. 

*  Caldecott  v.  Brown,  2  Hare,  145 ;  Be  Barrington's  Estate,  1  Johns.  & 
Hem.  142. 

*  Dunne  v.  Dunne,  3  Sm.  &  Gif.  22  ;  Dent  v.  Dent,  30  Beav.  363. 

6  Bright  V.  North,  2  Phil.  220  ;  Queen  v.  Norfolk  Comni'rs,  15  Q.  B. 
549 ;  Attorney-General  v.  Andrews,  2  McN.  &  G.  225  ;  Attorney-General 
V.  Eastlake,  11  Hare,  205. 


8  GENEEAL   POWERS    OF    TRUSTEES.  [CHAP.  XVI, 

but  these  quasi  trustees  cannot  apply  the  funds  of  an  exist- 
ing undertaking  for  the  purpose  of  obtaining  larger  powers 
from  the  legislature,  at  least  without  the  consent  of  all  parties 
interested.^ 

§  479.  An  executor  is  allowed  a  reasonable  time  to  close 
up  the  testator's  establishment.  In  one  case  a  period  of  two 
months  was  not  considered  too  long.^  In  most  States,  the 
time  that  the  testator's  family  may  remain  in  his  house,  and 
use  the  provisions  and  other  materials  on  hand,  is  fixed  by 
statute. 

§  480.  An  executor  or  trustee  may  appropriate  a  legacy 
without  suit  where  the  appropriation  is  such  as  the  court 
would  have  directed  ;  ^  and  the  trustee  may  expend  money  for 
the  protection,  safety,  and  support  of  a  cestui  que  trust  who  is 
incapable  from  any  cause  of  taking  care  of  himself,  but  the 
better  way  is  to  apply  to  the  court.^ 

§  481.  An  executor  may  waive  the  statute  of  limitations,  by 
which  a  debt  due  from  his  testator  before  his  death  is  barred, 
and  if  he  pays  such  debt  it  will  be  allowed  in  his  accounts.^ 
But  in  most  States  there  are  statutes  which  limit  the  time  of 

'  Attorney-General  v.  Andrews,  2  McN.  &  G.  225  ;  Vance  v.  East  Lan- 
cashire R.  Co.  3  K.  &  J.  50 ;  Attorney-General  v.  Guardians  of  Poor,  &c., 
17  Sim.  6  ;  Attorney-General  v.  Norwich,  16  Sim.  225  ;  Stevens  v.  South 
Devon  R.  Co.  13  Beav.  48. 

2  Field  V.  Pickett,  29  Beav.  576. 

^  Hutcheson  v.  Hammond,  3  Bro.  Ch.  145,  148;  Cooper  v.  Douglas,  2 
Bro.  Ch.  231 ;  Green  v.  Pigot,  1  Bro.  Ch.  103  ;  Sitwell  v.  Barnard,  6  Ves. 
543  ;  Attorney-General  v.  Manners,  1  Price,  411  ;  Hill  v.  Atkinson,  2  Mer. 
45  ;  Webber  v.  Webber,  1  S.  «&  S.  311  ;  2  Wms.  Ex'rs,  pp.  861-864. 

*  Duncombe  v.  Alson,  9  Beav.  211  ;  Chester  v.  Rolfe,  4  De  G.,  M.  &  G. 
798 ;  Ex  parte  Price,  2  Ves.  407  ;  Williams  r.  Wentwortb,  5  Beav.  235 ; 
Wentworth  v.  Tubb,  1  Y.  &  Col.  Ch.  171  ;  Barnsley  v.  Powell,  Amb. 
102. 

5  Stahlschmidt  v.  Lett,  1  Sim.  &  Gif.  415 ;  Hill  v.  Walker,  4  K.  &  J. 
166 ;  Hunter  v.  Baxter,  3  Gif.  214  ;  Dring  v.  Greetham,  1  Eq.  R.  442. 


§§  478-483.]         GENERAL   POWERS   OF    TRUSTEES.  9 

bringing  actions  against  executors  and  administrators  for 
debts  due  from  the  deceased  person.  In  England  there  is  a 
decree  of  administration.  After  the  action  is  barred  against 
the  executor  by  statute,  or  by  decree  of  administration,  he 
must  plead  the  statute  bar  at  his  peril  ;  and  if  he  should  pay 
after  all  actions  were  barred  against  him  by  statute,  decree  of 
administration,  or  otherwise,  he  would  pay  upon  his  own  re- 
sponsibility.i 

§  482.  A  trustee  may  generally,  acting  in  (jood  faith,  release 
or  compound  a  debt  due  to  his  trust  estate.^  But  if  he  releases  or 
compromises  a  debt  without  sufficient  reason  or  justification,  or 
if  he  sells  a  debt  for  a  grossly  inadequate  consideration,  when 
by  proper  diligence  more  could* have  been  realized,  he  will 
be  answerable  for  it  in  his  accounts.^  In  many  States  there 
are  statutes  authorizing  executors,  administrators,  guardians, 
and  trustees  to  refer  or  compromise  all  claims  due  to  and  from 
the  estates  which  they  represent.  Such  statutes  are  constitu- 
tional,'* and  courts  will  ratify  and  confirm  such  compromises.^ 

§  483.  Trustees  who  hold  an  equity  of  redemption  in  lands 
mortgaged  for  more  than  their  value  may  release  the  equity  of 
redemption  to  avoid  the  costs  of  a  foreclosure  suit,  where  such 
suit  will  lie,  and  where  costs  would  be  imposed  upon  them  as 
defendants.^  If  a  trustee  is  a  mortgagee,  he  would  not  be  justi- 
fied in  releasing  part  of  his  security  for  the  convenience  of  the 

'  Alston  V.  Trollope,  L.  R.  2  Eq.  205 ;  Bring  v.  Greetham,  1  Eq.  R. 
442;  Fuller  ».  Redman,  26  Beav.  614;  Shewen  v.  Vanderhorst,  1  R.  &  M. 
347  ;  2  R.  &  M.  75  ;  Briggs  v.  Wilson,  5  De  G.,  M.  &  G.  12;  2  Eq.  R. 
153  ;  Ex  parte  Dewdney,  15  Ves.  496. 

2  Blue  V.  MarsbalK  3  T.  Wms.  381 ;  Ratcliffe  v.  Winch,  17  Beav.  216; 
Forshaw  v.  Higginson,  8  De  G.,  M.  &  G.  827. 

3  Jevon  V.  Bush,  1  Vern.  342;  Gorge  v.  Chansey,  1  Ch.  R.  125;  Wiles 
V.  Gresham,  5  De  G.,  M.  &  G.  770;  Re  Alexander,  13  Ir.  Ch.  137. 

*  Clark  V.  Cordis,  4  Allen,  466. 

*  Zambaeo  v.  Cassanetti,  L.  R.  11  Eq.  439. 

*  Lewin  on  Trusts,  423  (oth  ed.). 


10  GENERAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

mortgagor  merely,  nor  unless  there  was  some  advantage  to  be 
gained  to  the  cestui  que  trust  or  the  trust  estate.^ 

§  484.  Trustees  of  lands  must  of  course  have  a  general  power 
to  lease  them,  otherwise  they  could  obtain  no  income  ;  but  they 
must  make  reasonable  leases.  In  one  case  a  lease  for  ten  years 
was  allowed.^  In  the  case  of  farming  lands,  husbandry  leases 
only  can  be  made :  in  England  such  leases  never  exceed  ten 
years.^  Probably  there  is  no  such  general  custom  in  this  coun- 
try. But  if  it  is  a  simple  trust,  and  the  cestui  que  trust  is  in 
possession,  the  trustee  can  do  nothing  without  the  consent  of 
the  beneficiary. 

§  485.  A  trustee  may  reimburse  himself  for  money  advanced 
in  good  faith  for  the  benefit  of  the  cestui  que  trust,  or  for  the 
protection  of  the  property,  or  for  his  own  protection  in  the 
management  of  the  trust.  It  is  a  rule,  that  the  cestui  que  trust 
ought  to  save  the  trustee  harmless  where  the  trustee  has  hon- 
estly, fairly,  and  without  possibility  of  gain  to  himself,  paid  out 
money  for  the  benefit  of  the  cestui  que  trusts 

§  486.  The  trustees  or  managers  of  a  trading  company  or 
partnership  have  no  power  in  any  case  to  borrow  money  beyond 
the  capital  prescribed  in  the  deed  of  settlement,  and  bind  the 
company  or  its  members.^  And  where  the  trustees  borrow 
money,  without  special  authority  conferred  by  the  deed,  for 
launching  and  enlarging  the  business,  and  make  themselves 
personally  liable,  they  have  no  remedy  against  the  other  mem- 

'  Ibid. 

2  Naylor  v.  Arnitt,  1  R.  &  M.  501 ;  Bowes  v.  East  London,  &c.,  Jac. 
324 ;  Drohan  v.  Drohan,  1  B.  &  B.  185  ;  Middleton  v.  Dodswell,  13  Ves.  268. 

'  Attorney-General  v.  Owen,  10  Ves.  560. 

■»  Balsh  V.  Hyham,  2  P.  Wms.  453. 

6  Burmester  v.  Norris,  6  Exch.  79G ;  Ricketts  v.  Bennett,  4  C.  B.  688; 
Hawtayne  v.  Bourne,  7  M.  &  W.  595  ;  Hawken  v.  Bourne,  8  M.  «&  W. 
703. 


§§  483-487.]      GENERAL  po\Vers  of  trustees.  11 

bers  of  the  company.^  But  if  the  trustees  incur  expenses  and 
debts,  within  the  scope  of  their  authority,  and  in  the  ordinary 
business  of  the  company,  or  borrow  money  to  pay  for  such  ex- 
penses or  debts,  the  company  are  in  equity  liable  to  pay  or 
contribute  to  the  payment  of  such  debts.^ 

§  487.  A  trustee  would  probably  be  justified  in  insuring  the 
property,  and  in  case  of  loss  the  insurance  money  would  belong 
to  the  cestui  que  trust ;  ^  but  where  there  is  a  tenant  for  life  enti- 
tled to  the  income,  it  would  be  safer  to  have  such  tenant's  con- 
sent before  paying  the  premium  out  of  his  income.^  A  mortgagee 
cannot  insure  at  the  expense  of  the  mortgagor  without  a  special 
stipulation  to  that  effect ;  and  if  he  insures  without  such  stipu- 
lation, he  cannot  charge  the  premiums  to  the  mortgagor  in  his 
accounts.^  If  a  lessor  and  a  lessee  insure  on  their  own  accounts, 
neither  can  claim  any  thing  under  the  policy  of  the  other/'  So 
if  a  tenant  for  life  insures  out  of  the  income,  the  remainder- 
man can  claim  no  benefit  from  the  policy.  If,  however,  a  com- 
mon carrier  insures  property  in  his  hands  as  a  carrier,  and 
there  is  a  loss,  he  holds  the  proceeds,  after  defraying  his  charges, 
in  trust  for  the  owners  of  the  property,  even  although  such 
owners  might  not  be  able  to  recover  of  him  for  the  loss  of  the 
property." 

'  Worcester  Corn  Exch.  Co.  3  De  G.,  M.  &  G.  180;  Ex  parte  Chippen- 
dale, 4  De  G.,  M.  &  G.  43  ;  Australian,  &c,  Co.  v.  Mounsey,  4  K.  &  J. 
733. 

'  Ibid.  ;  Tramp's  Case,  29  Beav.  353 ;  Hoare's  Case,  30  Beav.  225. 

^  Lerow  v.  Wilmarth,  9  Allen,  382. 

*  See  post,  §  553 ;  Ex  parte  Andrews,  2  Rose,  412 ;  Frye  v.  Frye,  27 
Beav.  146.  If  an  annuity  and  a  policy  on  the  life  of  cestui  que  vie  are  made 
the  subject  of  a  settlement,  it  is  implied  that  the  trustees  shall  i)ay  the  pre- 
miums out  of  the  income.     Darcy  v.  Croft,  9  Ir.  Ch.  19. 

^  Dobson  V.  Land,  8  Hare,  216  ;  l^hillips  t'.  Eastwood,  Lloyd  &  Goold,  t. 
Sugd.  289  ;  Ex  parte  Andrews,  2  Rose,  412. 

^  Duncombe  v.  Nelson,  9  Beav.  211;  Chester  v.  Rolfe,  4  De  G.,  M.  & 
G.  798. 

'  Lauderdale,  &c.  v.  Glyn,  1  El.  &  El,  612. 


12  SPECIAL    POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

§  488.  As  there  are  legal  estates  and  equitable  estates,  so 
there  are  legal  powers  and  equitable  powers.  Legal  powers 
operate  upon  the  legal  estate,  and  are  cognizable  in  courts  of 
law  ;  equitable  powers  affect  the  equitable  estate  alone,  and  are 
exclusively  cognizable  in  courts  of  equity.  Thus  if  land  is  given 
to  A.  for  life,  remainder  to  B.  and  his  heirs,  and  a  power  is 
given  to  C.  in  such  manner  as  to  operate  under  the  statutes  of 
uses,  the  execution  of  the  power  conveys  the  legal  estate,  and 
the  common  law  will  notice  it.  But  if  lands  are  limited  to  the 
use  of  A.  and  his  heirs,  in  trust  for  B.  for  life,  remainder  in 
trust  for  C.  and  his  heirs,  and  a  power  not  operating  under  the 
statute  of  uses  is  given,  either  to  the  trustee  or  the  cestui  que 
trust,  the  execution  of  the  power  will  have  no  effect  at  law.  It 
will  only  convey  an  equitable  or  beneficial  interest,  and  can  be 
recognized  only  in  equity.^ 

§  489.  An  equitable  power,  like  a  legal  power,  may  be  ap- 
pendant to  an  interest  in  the  estate,  and  grow  out  of  it,  or  it 
may  be  simply  a  collateral  power  given  to  some  person  who  has 
no  interest  whatever  in  the  estate,  legal  or  equitable.  Thus  a 
testator  gave  an  estate  to  his  sister  and  her  heirs  in  trust,  to 
settle  it  upon  such  descendants  of  the  donor's  mother  as  she 
should  think  fit.  The  sister  married,  and  it  became  a  question 
whether  she  could  execute  the  power  under  coverture.  But 
Lord  Hardwicke  held,  "  that  it  was  a  naked  equitable  power, 
not  coupled  with  any  beneficial  interest,  and  that  a  fejiie  covert 
can  execute  such  naked  power."  ^  But  where  a  donor  gave  a 
legal  estate  to  trustees  in  trust  for  an  infant  feme  covert  for  life, 
and  to  permit  her  by  deed  or  writing  to  dispose  of  the  estate  as 
she  should  think  fit,  and  the  donor  died  leaving  the  infant  feme 
covert  his  heir-at-law  ;  and  she,  during  her  infancy  and  coverture, 
executed  the  power, —  Lord  Hardwicke  held  this  to  be  bad,  as 
she  had  the  trust  in  equity  for  life,  and  the  trust  of  the  inheri- 

^  Lewin  on  Trusts,  427. 

-  Godolphin  v.  Goldolphin,  1  Ves.  21  ;  ante,  §  49. 


§§  486-490.]        STRICT    AND   DIRECTORY    POWERS.  13 

tance,  as  the  heir-at-law  of  the  donor,  therefore  the  whole  equi- 
table inheritance  was  in  her,  and  this  was  a  power  over  her  own 
inheritance,  and  neither  infants  nor  married  women  can  execute 
a  power  coupled  with  an  interest.^ 

§  490.  Courts  have  treated  powers  as  either  strict  or  simply 
directory.  Strict  powers  are  such  as  are  to  be  executed  only 
under  the  exact  circumstances  prescribed  in  the  instrument  of 
trust,  and  in  the  exact  manner  and  in  favor  of  the  particular 
class  of  persons  named.-  Directory  powers  are  monitory  only, 
and  may  be  executed  with  some  degree  of  latitude  ;  as  where 
an  advowson  was  vested  in  trustees,  to  present  a  fit  person 
within  six  months  of  the  incumbent's  decease,  the  direction  was 
held  to  be  monitory,  and  that  the  power  might  be  executed  after 
that  time  had  elapsed.^  So  when  six  trustees  were  empowered, 
when  reduced  to  three  to  appoint  others,  and  all  died  but  one, 
this  power  was  held  to  be  simply  directory,  and  that  one  might 
fill  the  vacancies.*  Where  a  power  was  given'  to  sell  with  all 
convenient  speed,  and  within  jive  years  after  the  testator's  de- 
cease, these  words  were  held  to  be  directory  only,  and  that  a 
sale  and  a  good  title  could  be  made  after  that  time.^  And 
when  twentj^-five  trustees  were  appointed,  with  a  direction  that 
when  reduced  to  fifteen  the  vacancies  should  be  filled,  the  court 
held  that  the  trustees  were  at  liberty  to  fill  the  vacancies  when 
reduced  to  only  seventeen,  and  that  they  would  be  compelled 
to  exercise  the  power  when  reduced  to  fifteen.''     Again,  when 

'  Hearle  v.  Greenbank,  1  Ves.  298 ;  Blilhe's  Case,  Freem.  91 ;  Peniie  r.  • 
Peacock,  For.  43. 

2  Loring  i'.  Blake,  98  Mass.  253;  Hall  v.  Culver,  3-t  Conn.  403  ;  Beatty 
V.  Clark,  29  Gal.  11 ;  Boorum  v.  Wells,  4  Green,  Ch.  87. 

3  Attorne\ -General  v.  Scott,  1  Ves.  413  ;  Shalter's  App.  43  Penn.  St.  83. 
*  Attorney-General  v.  Floyer,  2  Vern.  748 ;  Attorney-General  v.  Bishop 

of  Litchfield,  0  Ves.  825 ;  Attorney-General  c.  Cuming,  2  Y.  &  Col.  Ch. 
139;  Foley  v.  Wontner,  2  J.  «&  W.  245. 

5  Smith  V.  Kenney,  83  Tex.  283;  Pearce  v.  Gardner,  10  Hare,  287; 
Cuff  u.  Hall,  1  Jur.  (n.  s.)  973;  Shalter's  App.  43  Penn.  St.  83. 

^  Doe  V.  Roe,  Anst.  8G. 


14  SPECIAL    POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

powers  are  coupled  with  an  interest  in  an  estate,  a  substantial 
compliance  with  the  directions  in  executing  the  powers  will  be 
sufficient.^ 

§  491.  Although  powers  may  be  given  to  trustees  in  the 
same  words  which  are  used  in  giving  them  an  estate,  yet  dif- 
ferent rules  of  construction  will  apply  to  the  gift.  Thus  if  an 
estate  is  given  to  A.  and  B.  and  their  heirs,  A.  and  B,  may 
convey  it  to  strangers,  and  the  survivor,  where  joint-tenancy  is 
not  abolished,  may  devise  it ;  but  if  a  power  is  given  to  A.  and 
B.  and  their  heirs,  it  can  neither  be  assigned  by  both,  nor 
devised  by  the  survivor.^  Thus  where  a  mere  staked  power  was 
given  to  A.  and  B.  and  their  heirs.  Lord  Chief-Justice  Wilmot 
said  :  "  It  was  equivalent  to  saying,  the  power  is  to  be  executed 
by  consent  of  both  while  they  live  ;  but  when  one  dies,  that 
consent  shall  devolve  on  the  heir  ;  the  heir  of  the  dead  trustee 
shall  consent,  as  well  as  the  surviving  trustee.  One  may  abuse 
the  power.  I  will  supply  the  loss  of  one  by  his  heir,  and  the 
loss  of  both  by  the  heirs  of  both."  ^  But  where  the  estate 
itself  is  given  to  A.  and  B.  and  their  heirs  in  trust,  with  cer- 
tain powers  appendant,  the  power  is  an  essential  part  of  the 
trust,  and  passes  to  the  survivor. 

§  492.  In  one  case,  a  naked  power  of  sale  was  given  to  three 
trustees  and  their  heirs,  to  preserve  contingent  remainders. 
The  money  was  to  be  paid  into  the  hands  of  the  trustees,  the 
survivors  or  survivor  of  them,  and  the  executors,  adminis- 
trators, or  assigns  of  such  survivor.  New  trustees  were  to  be 
appointed  as  often  as  one  or  more  of  the  trustees  died.  One 
trustee  died,  and  the  Court  of  Queen's  Bench  determined  that 
the  survivors  could  not  execute  the  power.*     Lord  Eldon  was 

1  Rowe  V.  Becket,  30  Ind.  154 ;  Rowe  v.  Lewis,  30  Ind.  163. 

2  Cole  V.  Wade,  16  Ves.  46. 

^  Mansell  v,  Vaughn,  Wilmot,  50. 

"  Townsend  v.  Wilson,  1  B.  &  A.  608  ;  2  Mad.  261 ;  Cooke  r.  Craw- 
ford, 13  Sim.  91. 


§§  490-493.]  DISCRETIONARY   POWERS.  15 

dissatisfied  witli  the  judgment,  and  said,  "  Did  the  court  con- 
sider that  the  two  surviving  trustees  and  the  heir  of  the 
deceased  trustee  were  to  act  together  ?  for  it  was  one  thing  to 
say  that  tlie  survivors  could  not  act  until  another  was  appointed, 
and  a  dififerent  thing  to  say  that  the  heir  of  the  deceased  trustee 
could  act  in  the  mean  time.^  But  his  Lordship  felt  himself 
bound  by  the  authority,  and  refused  to  compel  a  purchaser  to  take 
a  title  under  similar  circumstances.^  It  will  be  noticed,  that, 
in  this  case,  the  estate  itself  was  not  in  the  trustees ;  if  it 
had  been,  the  survivors  would  have  had  an  interest  and  could 
have  executed  the  power :  for  it  has  been  held,  that  where  an 
estate  was  devised  to  three  trustees  and  their  respective  heirs, 
upon  the  trust  that  they  and  their  respective  heirs  should  sell, 
the  word  "  respective  "  was  surplusage,  and  that  the  survivors 
could  make  a  title.^ 

§493.  A  power  limited  tcP*^ executors"  or  "sons-in-law," 
may  be  exercised  by  the  survivors,  so  long  as  the  plural  num- 
ber remains  ;  ^  and  if  the  power  is  limited  to  a  number  of  trus- 
tees, it  may  reasonably  be  concluded,  that  whether  they  have 
any  estate  or  not,'^  i.e.,  whether  the  power  is  an  adjunct  to  the 
trust,  or  collateral  to  it,  it  may  be  exercised  by  the  surviving 
trustees.  A  power  given  to  "  executors  "  will,  if  annexed  to 
the  office  of  executor,  be  continued  to  the  single  survivor.^  So 
a  power  given  to  "trustees  "  will,  as  annexed  to  the  estate  and 
office,  be  exercisible  by  a  single  survivor ;  "^  but  it  cannot  be 
exercised  by  one  trustee  in  the  lifetime  of  the  other  who  has 
not  effectually  renounced  the  trust."     If  a  power  is  commuui- 

'  Hall  V.  Dcwes,  Jac.  193;  Jones  v.  Price,  11  Sim.  557. 

2  Hall  V.  Dewes,  Jac.  189. 

3  Jones  V.  Price,  11  Sim.  557  ;  Hewett  v.  Hewctt,  2  Eden,  332  ;  Amb.  208. 
*  1  Sugd.  Pow.  128  (8th  ed.). 

6  1  Siif^nl.  Pow.  128;  Howell  v.  Barnes,  Cro.  Car.  382;  Brassey  «.  Chal- 
mers, 4  De  G.,  M.  &  G.  528,  reversing  same  case  in  16  Beav.  231  ;  Colsten 
V.  Chandos,  4  Bush,  GG6. 

8  Lane  v.  Debenham,  11  Flare,  188;  Colston  v.  Chandos,  4  Biu^h,  C6G. 

''  Lancashire  v.  Lancashire,  2  Phil.  CG4 ;   1  De  G.  &  Sm.  28. 


16  SPECIAL   POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

cated  to  the  trustees  for  the  time  being,  it  cannot  be  exercised 
by  a  single  trustee.^  Where  there  was  a  trust  for  sale,  but  no 
sale  was  to  be  made  without  the  consent  of  the  testator's  sons 
and  daughters,  and  there  were  seven  sons  and  daughters,  and 
one  died,  it  was  held  that  a  sale  with  the  consent  of  the  sur- 
vivors was  too  doubtful  a  title  to  be  specifically  enforced.^  But 
where  trustees  had  power  to  sell,  with  the  consent  of  a  majority 
of  the  testator's  children  then  living,  and  all  the  children  were 
dead,  it  was  held  that  the  trustees  could  execute  the  power  by 
a  sale,  and  make  a  good  title.^ 

§  494.  Where  powers  are  confided  to  trustees  "  and  their 
heirs,"  and  not  "  assigns,"  it  cannot  be  exercised  by  persons 
claiming  by  assignment  under  the  trustees  or  their  heirs.*  So 
it  cannot  be  exercised  by  a  "  devisee  "  of  the  original  trustee, 
for  a  devige  is  an  assignment ;  ^  if  the  word  "  assigns  "  is 
added  to  the  limitation  to  the  trustees,  the  devisees  can  execute 
such  part  of  the  trusts  as  may  be  delegated  to  third  persons.^ 

§  495.  When  a  discretionary  legal  power  is  expressly  given 
to  A.  and  his  assigns,  the  assignee  or  devisee  of  A.,  or  any 
one  claiming  under  him  by  operation  of  law  as  heir  or  executor, 
may  execute  the  power.'     As  where  a  power  in  a  mortgage  is 

1  Ibid. 

^  Sykes  v.  Sheard,  2  De  G.,  Jo.  &  Sm.  6;  Alley  v.  Lawrence,  12  Gray, 
374. 

8  Leeds  V.  Wakefield,  10  Gray,  514 ;  Williams  v.  Williams,  1  Duvall,  221. 

*  Bradford  v.  Belfield,  2  Sim.  264. 

*  Cooke  V.  Crawford,  13  Sim.  91.  See  Midland  Counties  Railway  Co.  v. 
Westcombe,  11  Sim.  57;  Titley  v.  Wolstenholme,  7  Beav.  425;  Mortimer 
V.  Ireland,  6  Hare,  196;  Ockleston  v.  Heap,  1  De  G.  &  Sm.  640;  Beasley  v. 
Wilkinson,  13  Jur.  649  ;  Wilson  v.  Bennett,  20  L.  J.  Ch.  279  ;  Macdonald 
V.  Walker,  14  Beav.  556  ;  2  Jarm.  on  Wills,  716  ;  1  Green.  Cruise,  407  ; 
Be  Burtt's  Est.  1  Drew.  319. 

*  Lane  v.  Debenliam,  11  Hare,  188  ;  Saloway  v.  Strawbridge,  1  K.  &  J. 
371  ;  7  De  G.,  M.  &  G.  594. 

'  How  V.  Whitfield,  1  Vent.  338 ;  1  Freem.  476  ;  Montague  v.  Dawes, 
14  Allen,  369. 


§§  493-497.]  DISCRETIONARY   POWERS.  17 

limited  to  the  mortgagee,  his  heirs,  executors,  administrators, 
and  assigns,  the  power  goes  along  with  and  is  annexed  to  the 
security,  and  the  power  can  be  executed  by  all  tliose  to  wliom  any 
interest  in  the  estate  may  come,  whether  heir,  executor,  adminis- 
trator, or  assignee.^  When  a  mortgage  is  made  to  A.  and  B., 
their  heirs  and  assigns,  to  secure  a  joint  advance,  tlie  power 
and  security  are  coupled  together  and  go  to  the  survivor,  who 
may  execute  the  power  by  sale  or  otherwise.^  But  if  an  estate 
is  vested  in  a  trustee  upon  trust,  that  he,  his  heirs,  executors, 
administrators,  or  "  assigns,"  shall  sell,  <fec.,  the  word  "  as- 
signs "  will  not  authorize  the  trustee  to  assign  the  estate  to  a 
stranger  ;  ^  nor,  if  assigned,  can  the  stranger  execute  the 
power.* 

§  496.  Where  the  power  is  matter  of  personal  confidence  in 
the  trustee,  it  cannot  be  extended  beyond  the  express  words 
and  clear  intention  of  the  donor  ;  so  if  a  power,  indicating  per- 
sonal confidence  is  given  to  a  trustee  and  his  executors,  and 
the  executor  of  the  trustee  dies,  his  executor,  or  the  executor 
of  the  executor,  who  by  law  in  England  is  executor  both  of  the 
trustee  and  his  executor,  cannot  execute  the  power.^  Still  less 
could  the  executor  of  the  executor  of  the  trustee  execute  such 
power  in  this  country ;  for  if  an  executor  dies  before  complet- 
ing his  trust,  an  executor  de  bonis  non  must  be  appointed. 

§  497.  A  discretionary  power  to  four  trustees  and  the  sur- 
vivors of  them  cannot  be  executed  by  the  last  survivor ;  for, 

1  See  ante,  §  199  ;  Saloway  v.  Strawbridge,  1  K.  &  J.  371  ;  7  De  G.,  M. 
&  G.  594. 

*  Hind  V.  Poole,  1  K.  &  J.  383. 

^  Lewin  on  Trusts,  431 ;  Cooke  v.  Crawford,  13  Sim.  98. 

*  Ibid.;  Morlimer  v.  Ireland,  11  Jur.  721;  6  Ilare,  196;  "Wilson  i'. 
Bennett,  5  De  G.  &  Sni.  495  ;  Stevens  v.  Austen,  7  Jur.  (x.  s.)  873;  Burtt's 
Est.  1  Drew.  319;  Titley  u.  Wolstenholme,  7  Beav.  425;  Ocklcston  r.  Heap, 
1  De  G.  &  Sm.  542  ;  Ashton  v.  Wood,  3  Sm.  &  Gif.  436 ;  Hall  v.  May,  3 
K.  &  J.  585 ;  Hardwick  v.  Mynd,  1  Anst.  109,  is  not  law. 

*  Cole  V.  Wade,  16  Ves.  44;  Stile  v.  Thompson,  Dyer,  210  a;  Sugd. 
Pow.  129  (8th  ed.). 

VOL.  II.  2 


18  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

though  the  power  may  generally  be  held  to  survive,  an  inten- 
tion to  the  contrary,  if  it  can  fairly  be  inferred,  will  control. 
The  settlor  may  be  supposed  to  have  said,  "  I  repose  confidence 
in  any  two  of  the  trustees  jointly,  but  in  neither  one  of  them 
individually."  ^  But  if  the  power  is  to  four  trustees,  and  the 
survivor  of  them,  it  may  well  be  urged  that  on  the  death  of 
one,  the  power  may  still  be  exercised  by  the  survivors  ;  for  the 
settlor  has  said  that  he  reposes  confidence  in  the  four  jointly, 
and  in  each  one  of  them  individually .^ 

§  498.  If  a  power  is  given  to  trustees,  to  be  exercised  during 
the  continuance  of  the  trust,  it  cannot  be  exercised  after  the 
time  when  the  trust  ought  to  have  ceased,  though,  from  the 
delay  of  the  trustees,  it  happens  that  the  trust  has  not  in  fact 
been  executed.^  If  the  powers  are  not  confined  to  the  continu- 
ance of  the  trust,  yet  they  will  cease  when  the  objects  of  the 
trust  have  been  fully  exhausted,  and  not  before.*  If  there  is 
no  direction  as  to  the  continuance  of  the  trust,  the  powers  will 
subsist  till  the  end  of  the  trust,  although  there  may  be  delay  by 
the  trustees  in  making  the  conveyances  directed  by  the  settlor.^ 
If  the  trust  continues  as  to  part  of  the  property,  but  has  ceased 
as  to  part,  the  power  will  remain,  and  can  be  exercised  over 
the  whole, ^  unless  there  is  a  clear  direction  to  the  contrary.'' 
As  where  an  estate  was  vested  in  trustees,  one-half  in  trust 
for  A.  for  life,  remainder  to  her  children  at  twenty-one,  and 

'  Hibbard  v.  Lamb,  Amb.  309 ;  Eaton  v.  Smith,  2  Beav.  236. 
2  Crewe  v.  Dicken,  4  Ves.  97. 

'  Wood  V.  White,  2  Keen,  664  ;  the  matter  of  fact  was  changed  in  this 
case  on  appeal  in  4  M.  «&  Cr.  460. 

*  WoUey  V.  Jenkins,  23  Beav.  53;  Mortlock  v.  Buller,  10  Ves.  315; 
Wheate  v.  Hall,  17  Ves.  86;  Lantsbery  v.  Collier,  2  K.  &  J.  709  ;  McWhorter 
«.  Agnew,  6  Paige,  111;  Moore  v.  Shultz,  13  Penn.  St.  101;  Salisbury  v. 
Bigelow,  20  Pick.  174 ;  Huckabee  v.  Billingsby,  16  Ala.  417. 

6  Wood  V.  White,  4  M.  &  Cr.  460  ;  Bolton  v.  Jacks,  6  Rob.  N.  Y.  166  ; 
Cresson  v.  Ferree,  70  Penn.  St.  446. 

*  Trower  v.  Knightley,  6  Mad.  134 ;  Taite  v.  Swinstead,  26  Beav.  525. 
'  Wood  V.  White,  4  M.  &  Cr.  460. 


§§  497-499.]  DISCRETIONARY   POWERS.  19 

the  other  half  in  trust  for  B.  for  life,  remainder  to  her  children 
at  twenty-one,  with  power  to  the  trustees  to  sell  during  the 
continuance  of  the  trust,  and  the  children  of  one  had  arrived 
at  twenty-one,  and  the  trust  had  determined  as  to  their  share, 
it  was  held  that  the  trustees  had  power  to  sell  the  whole  under 
the  terms  of  the  settlement ;  it  being  necessary  that  the  trus- 
tees should  have  the  right  to  sell  the  whole,  in  order  to  pre- 
serve the  trust  for  the  full  benefit  of  the  other  half.^ 

§  499.  A  power  of  sale,  whether  a  common-law  or  equitable 
power,  or  taking  effect  under  the  statute  of  uses,  can  be  exer- 
cised only  by  the  persons  to  whom  it  is  expressly  given.^  If  a 
power  of  sale  or  any  other  power  is  given  to  two  or  more  per- 
sons by  name,  with  no  words  of  survivorship,  and  one  dies,  or 
refuses  to  act,  the  others  cannot  execute  the  power.^  But 
where  the  power  is  given  to  the  trustees  as  a  class,  or  to  the 
office  of  trustee,  whether  their  names  are  mentioned  or  not, 
the  power  will  continue  and  can  be  exercised  as  long  as  there 
are  more  trustees  than  one,  although  there  are  no  words  of 
survivorship.^  In  the  United  States,  a  power  given  to  execu- 
tors or  trustees,  as  such,  to  sell  real  estate  may  be  exercised 
so  long  as  a  single  donee  survives ;  and  so  if  land  is  given  to 
trustees  to  sell,  the  trustees  are  joint-tenants,  and  the  survivor 
will  have  the  freehold,  and  may  exercise  the  power  of  sale,  it 
being  a  power  coupled  with  an  interest.^     And  only  the  acting 

'  Trower  v.  Knightley,  6  Mad.  134  ;  Taite  v.  Swinstead,  26  Beav.  525. 

«  1  Sugd.  Pow.  141,  144  (6th  ed.)  ;  Boston  Franklinite  Co.  v.  Condit,  4 
Green,  Ch.  395. 

8  Ibid. 

*  Ibid. ;  Co.  Lit.  113  a,  n.  2  ;  In  matter  of  Bull,  45  Barb.  334. 

«  Peter  v.  Beverley,  10  Pet.  532;  1  How.  134;  Shelton  v.  Homer,  5 
Met.  466  ;  Treadwell  v.  Cordis,  5  Gray,  388  ;  Gibbs  v.  Marsh.  2  Met.  252  ; 
Wells  V.  Lewis,  4  Met.  (Ky.)  269  ;  Bonefant  v.  Greenfield,  Cro.  FAiz.  80  ; 
Franklin  v.  Osgood,  2  John.  Ch.  19  ;  Zeback  v.  Smith,  3  Binn.  69  ;  Davoiie 
V.  Fanning,  2  John.  Ch.  254 ;  Muldrow  v.  Fox,  2  Dana,  79  ;  Hunt  v.  Kous- 
manicre,  2  Mason,  244;  Wood  v.  Sparks,  1  Dev.  &  Bat.  389;  Burr  v.  Sim, 
1  Whart.  266  ;  Niles  v.  Stevens,  4  Denio,  399  ;  Coykendall  i-.  Rutherford, 


20  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

executors  or  trustees  need  join  in  executing  such  powers.^  In 
many  States,  statutes  have  been  enacted  which  authorize  the 
survivor  of  several  executors  to  execute  even  naked  powers 
given  by  wilL  A  grave  question  has  arisen  upon  these  statutes, 
whether  they  extend  to  the  execution  of  discretionary  powers 
given  to  trustees,  or  whether  they  are  confined  to  powers  con- 
nected with  the  administrative  functions  of  executors.^  In 
general  it  would  be  a  question  as  to  the  intention  of  the  donor, 
whether  the  powers  given  should  be  executed  by  all  the  trustees 
named,  or  any  one  or  more  of  them ;  or  whether  it  was  the 
intention,  that  successors  or  others  connected  with  the  trust 
should  have  and  execute  the  powers  conferred  ;  in  other  words, 
the  question  is,  whether  the  donor  reposed  a  personal  trust 
and  confidence  in  the  trustees  appointed,  or  whether  he  reposed 
the  power  in  whomsoever  might  in  fact  fill  the  office  of  trustee.^ 

1  Green,  Ch.  360 ;  Putman  Free  School  v.  Fisher,  30  Me.  526 ;  Jackson  v. 
Burtis,  14  John.  391 ;  Robertson  v.  Gaines,  2  Humph.  367  ;  Miller  v.  Meetch, 
8  Barr,  417;  Sharp  v.  Pratt,  15  Wend.  610;  AVardwell  v.  McDowell,  31 
111.  364  ;  Jackson  v.  Given,  16  John.  167;  Jackson  v.  Bates,  14  John.  391  ; 
Jackson  v.  Ferris,  16  John.  391;  Watson  v.  Pearson,  2  Exch.  594  n. ; 
Cadogan  v.  Evvart,  7  Ad.  &  El.  636;  Taylor  v.  Morris,  1  Comst.  341 ;  Tainter 
V.  Clark,  13  Met.  220;  Warden  v.  Richards,  11  Grajs  277.  This  matter  is 
regulated  in  several  States  by  statutes  which  cannot  be  cited,  but  which  the 
reader  will  consult  in  his  own  State.  In  some  States  if  one  of  several  trustees 
has  been  discharged  after  acceptance,  the  court  must  fill  the  vacancy  before 
the  trustees  can  execute  the  power.     Matter  of  Van  Wyck,  1  Barb.  565. 

'  In  matter  of  Bull,  45  Barb.  334;  Hutchins  v.  Baldwin,  7  Bosw.  236. 

^  In  Kentucky,  South  Carolina,  and  Mississippi,  it  is  held  that  they  do 
not  extend  to  discretionary  powers,  but  are  confined  to  the  functions  of  the 
executors  in  settling  up  estates.  Woodbridge  v.  Watkins,  3  Bibb,  350 ; 
Clay  V.  Hart,  7  Dana,  1  ;  Brown  v.  Hobson,  3  A.  K.  Marsh.  381 ;  Mallet  v. 
Smith,  6  Rich.  Eq.  22;  Bartlett  v.  Southerland,  2  Cush.  Miss.  401.  In 
New  York,  the  statute  was  held  to  apply  to  powers  to  be  executed  by  trustees 
generally.  Taylor  v.  Morris,  1  Comst.  341.  And  see  Chanet  v.  Villepon- 
teaux,  3  McCord,  29 ;   Wood  v.  Sparks,  1  Dev.  &  Bat.  389. 

'  Granville  v.  McNeile,  13  Jur.  252 ;  7  Hare,  156  ;  Affleck  v.  James,  17 
Sim.  121;  Shelton  v.  Homer,  5  Met.  462;  Ross  v.  Barclay,  18  Penn.  St. 
179;  Pratt  v.  Rice,  7  Cush.  209  ;  Cole  v.  Wade,  16  Ves.  27;  Borings  v. 
Marsh,  6  Wall.  337  ;  Fontain  v.  Ravnell,  17  How.  369 ;  Gibbs  v.  Marsh,  2 
Met.  262. 


§§  499-501.]  BY  WHOM   EXERCISED.  21 

§  500.  As  a  general  rule,  administrators  with  the  will  an- 
nexed are  clothed  only  with  the  ordinary  duties  and  powers  of 
administrators,  and  they  can  exercise  none  of  the  powers  given 
to  executors  or  trustees,  in  reference  to  the  real  estate,  unless 
such  powers  are  specially  conferred  upon  them  by  the  terms  of 
the  will.i  This  rule  has  been  altered  by  statute  in  several 
States,  but  the  statutes  have  been  held  not  to  apply  to  discre- 
tionary trusts  or  personal  confidences,^  but  only  to  the  general 
functions  of  executors  in  settling  estates.^  A  power  of  sale  in 
a  mortgage  given  to  the  mortgagee,  his  executors,  administra- 
tors, or  assigns,  may  be  executed  by  any  of  the  personal  repre- 
sentatives of  the  mortgagee  who  have  the  duty  of  settling  his 
estate.*     A  husband  cannot  exercise  a  power  given  to  liis  wife.^ 

§  501.  If  a  power  of  sale  is  created  by  a  will  without  stating 
by  whom  it  is  to  be  exercised,  but  the  proceeds  of  the  sale  are 
directed  to  be  applied  or  distributed  by  an  executor,  trustee, 

'  Tainter  v.  Clark,  13  Met.  224;  Moody  v.  Vandyke,  4  Binn.  .31  ;  Dun- 
ning V.  National  Bank,  6  Lansing,  296;  Moody  v.  Fulmer,  3  Grant,  17; 
Waters  v.  Marjorum,  10  P.  F.  Smith.  39;  Drury  v.  Natick,  10  Allen,  1G9 ; 
Evans  V.  Chew,  71  Penn.  St.  47 ;  Conklin  v.  Egerton,  21  Wend.  430  ; 
Greenough  v.  Welles,  10  Gush.  571 ;  Lucas  v.  Doe,  4  Ala.  679 ;  Hall  v. 
L-win,  2  Gilm.  180  ;  Hunt  v.  Holden,  2  Mass.  168 ;  Knight  v  Loomis,  .30 
Me.  208;  Wills  v.  Cowper,  2  Ohio,  124;  Jackson  v.  Potter,  4  Wend.  672; 
Roonie  v.  Phillips,  27  N.  Y.  357  ;  McDonald  v.  King,  Coxe,  432  ;  Armstrong 
V.  Park,  9  Humph.  19.5 ;  Drane  v.  Bayliss,  1  Humph.  174.  In  such  cases  a 
trustee  should  be  specially  appointed  to  execute  the  powers  which  may  not 
be  exercised  by  administrators  with  the  will  annexed,  and  the  heirs-at-law  or 
cestuis  que  trust  should  be  parties  to  the  proceedings.  Roome  v.  Phillips, 
47  N.  Y.  357. 

2  Comra'rs  v.  Forney,  3  W.  &  S.  357  ;  Hester  r.  Hester,  2  Ire<l.  Eq.  830  ; 
Smith  V.  McCrary,  3  Ired.  Eq.  204;  Drayton  v.  Grimke,  1  Bail.  E([.  392  ; 
Brown  v.  Armistead,  6  Rand.  594  ;  Owens  v.  Cowan's  Heirs,  7  B.  Mon.  L56  ; 
Moody  V.  Fulmer,  3  Grant,  17. 

8  Brown  v.  Hobson,  3  A.  K.  IVLarsh.  381 ;  Woolridge  v.  Watkins,  3  Bibb, 
350;  Conklin  v.  Egerton,  21  Wend.  430;  25  Wend.  224;  Montgomery  v. 
Milliken,  5  Sra.  &  M.  188  ;  Tainter  v.  Clark,  13  Met.  220 ;  Ross  v.  Barclay, 
18  Penn.  St.  179 ;  Bailey  v.  Brown,  9  R.  I.  79. 

*  Doolittle  V.  Lewis,  7  John.  Ch.  48. 

*  May's  Heirs  v.  Frazer,  4  Lit.  391. 


22  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

or  other  person,  such  executor,  trustee,  or  other  person  will  by 
implication  take  the  power  of  selling,  unless  there  is  some  other 
intention  to  be  gathered  from  the  whole  will.^  If  the  will 
gives  a  power  of  sale  to  pay  debts  and  legacies,  or  for  distribu- 
tion, without  stating  by  whom  the  sale  is  to  be  made,  the  ex- 
ecutor takes  the  power  by  implication.^  But  if  there  is  a 
power  of  sale,  but  no  person  is  named  to  execute  the  power, 
and  there  is  no  purpose  of  the  sale  but  a  mere  division  of  the 
estate,  the  executors  cannot  exercise  the  power ;  and  if  they 
sell  and  purchase  themselves,  they  cannot  be  compelled  to 
complete  the  purchase.^  A  devise  to  three  children  in  fee,  to 
be  divided  or  sold  as  two  of  the  three  children  could  agree, 
conferred  no  power  of  sale  on  any  one.*  And  so  where  an 
estate  was  conveyed  to  a  trustee  in  trust  for  a  corporation,  to 
be  conveyed  by  him  under  the  direction  of  the  directors,  and 
upon  his  failure  to  convey,  they  to  appoint  other  trustees  by 
deed  :  a  deed  signed  by  the  president  and  directors  conveyed 
no  estate,  though  it  recited  that  they  were  the  successors  of  the 
trustee.^    If  an  estate  is  given  to  the  executor  for  life,  to  be 

'  Xewton  V.  Bennett,  1  Bro.  Ch.  135  ;  Bentban  v.  Wiltshire,  4  Mad.  44; 
Blatch  V.  Wilder,  1  Atk.  420 ;  Elton  v.  Harrison,  2  Swans.  276  n.  ;  Tylden 
V.  Hyde,  2  S.  &  S.  238;  Forbes  v.  Peacock,  11  Sim.  162;  Ward  v.  Devon, 
cited  11  Sim.  160;  Patton  v.  Randall,  1  J.  &  W.  189  ;  Curtis  v.  Fulbrook, 
8  Hare,  28;  Watson  v.  Pearson,  2  Exoh.  580;  Gosling  v.  Carter,  1  Coll. 
644;  Doe  v.  Hughes,  6  Exch.  223;  Lippincott  v.  Lippincott,  4  Green,  Ch. 
121;  Jones's  App.  5  Grant,  19. 

*  Ibid.;  Bogert  v.  Hertell,  4  Hill,  492;  Meakings  v.  Cromwell,  2  Sand. 
612;  1  Selden,  136;  Dorland  v.  Dorland,  2  Barb.  S.  C.  63;  Gray  v.  Hen- 
derson, 71  Penn.  St.  368;  and  see  Dunning  v.  National  Bank,  6  Lansing, 
296;  Davoue  v.  Fanning,  2  John.  Ch.  254  ;  Houck  v.  Houck,  5  Barr,  273; 
Silverthorn  v.  McKinster,  12  Penn.  St.  67  ;  Lloyd  v.  Taylor,  2  Dallas,  223 ; 
Putnam  Free  School  v.  Fisher,  30  Me.  523  ;  Foster  v.  Craige,  2  Dev.  &  Bat. 
Eq.  209;  Robertson  v.  Gaines,  2  Humph.  378;  Magruder  v.  Peter,  11  Gill 
&  J.  217;  Peter  v.  Beverly,  10  Peters,  532  ;  1  How.  134  ;  Lockhart  v.  North- 
ington,  1  Sneed,  318. 

3  Drayton  v.  Drayton,  2  Des.  250  n. ;  Shoolbred  v.  Drayton,  2  Des. 
246. 

*  Geroe  v.  Winter,  1  Halst.  Ch.  655. 

*  Bumgarner  v.  Coggswell,  49  Mo.  259. 


§§  501-503.]  BY   WHOM    EXERCISED.  23 

sold  at  his  death,  he  can  neither  sell  the  land,  nor  devise  the 
power  to  his  executor.^ 

§  502.  If  a  power  is  given  to  several  trustees,  and  one  of 
them  refuses  to  accept,  the  power  may  be  exercised  by  the  con- 
tinuing trustee  or  trustees.^  If  the  power  is  not  given  to  the 
trustees  by  name,  but  to  the  office,  and  one  disclaims,  there 
can  be  no  doubt  that  the  acting  trustees  can  execute  the  power.^ 

§  503.  A  power,  though  appendant  to  an  estate,  is  not  so 
appendant  that  it  goes  with  the  estate  in  every  transfer  made 
by  the  trustee,  or  in  every  devolution  by  course  of  law.'*  But 
where  the  estate  is  transferred  to  trustees  duly  appointed  under 
a  power,  the  transferees  take  the  estate  and  office  together,  and 
can  exercise  the  power.  But  where  the  court  appoints  new 
trustees,  it  cannot  communicate  arbitrary  or  discretionary 
powers  to  them,^  unless  the  instrument  of  trust  confers  such 
powers  upon  the  trustees  for  the  time  being,  or  they  are 
annexed  to  the  office.^  If  a  power  is  given  to  a  trustee,  his 
heirs  and  assigns,  and  a  new  trustee  is  appointed,  and  a  vest- 
ing order  made,  the  new  trustee  may  execute  the  power  under 

^  Walter  v.  Logan,  5  B.  ]\Ion.  516.  In  many  of  the  States,  there  are 
statutes  wliich  give  directions  as  to  who  shall  exercise  powers  of  sale.  And 
see  Carroll  v.  Stewart,  4  Rich.  200. 

2  See  ante,  §  499;  Crewe  v.  Dicken,  4  Ves.  97;  Granville  v.  McNeile, 
7  Hare,  156;  Hawkins  v.  Kemp,  3  East,  410;  Cooke  v.  Crawford,  13  Sim. 
96;  Adams  v.  Taunton,  5  Mad.  435;  Baj'Iy  v.  Curaming,  10  Ir.  E(|.  410; 
Sands  v.  Nugee,  8  Sim.  130. 

3  Worthington  v.  Evans,  1  S.  &  S.  165 ;  Boyce  v.  Corbally,  t.  Think.  102 ; 
Clarke  v.  Parker,  19  Ves.  1 :  Welles  v.  Lewis,  4  Met.  (Ky.)  269. 

^  Cole  V.  Wade,  16  Ves.  47;  Crewe  v.  Dicken,  4  Ves.  97;  Burtt's  Est. 
1  Drew.  319;  Wilson  v.  Bennett,  5  De  G.  &  Sra.  475;  Hardwick  v.  Myiid, 
Anst.  109,  is  not  law. 

*  Doyley  v.  Att'y-Gen.  2  Eq.  Ca.  Ab.  194  ;  Fordyce  v.  Bridges,  2  Phil. 
497;  Newman  v.  Warner,  1  Sim.  (n.  s.)  457;  Cole  v.  Wade,  16  Ves.  44; 
Hibbard  v.  Lanibe,  Amb.  309. 

«  Rartlcy  v.  Bartley,  3  Drew.  381;  Brassey  i'.  Chalmers,  4  De  G.,  ^L  & 
G.  528 ;  Byam  v.  Byam,  19  Beav.  66 ;  Bailey  v.  Brown,  9  R.  I.  79. 


24  SPECIAL  POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

the  word  assigns.  But  statutes  in  England,  and  in  many  of 
the  States,  now  give  new  trustees  the  same  power  as  the  old. 
Under  some  of  these  statutes  a  new  trustee  may  come  in  and 
prosecute  a  suit  begun  by  his  predecessors,  without  recourse  to 
a  bill  of  revivor.^  A  release  by  one  trustee  to  the  others,  with 
an  intention  of  disclaiming,  will  operate  as  a  formal  disclaimer .^ 

§  504.  Though  an  assignment  of  the  trust  estate  will  not 
transfer  a  power  to  the  assignee,  neither  will  the  power  remain 
in  the  assignor ;  for  if  the  settlor  intended  the  estate  and  the 
power  to  be  coupled  together,  their  severance  will  intercept  the 
execution  of  the  power.  As  where  an  estate  is  given  to  A.  and 
his  heirs  in  trust,  with  a  power  to  be  executed  by  A.  and  his 
heirs,  and  A.  sells  the  estate  in  his  lifetime  or  devises  it  by  his 
will,  the  heir  of  A.  cannot  execute  the  power  ;  for  the  heir  is 
no  heir  as  to  this  estate.^  But  in  charities  it  frequently  hap- 
pens that  the  estate  or  fund  may  vest  in  one  set  of  donees,  and 
the  power  of  selecting  the  cestuis  que  trust  may  exist  in 
another.* 

§  505.  The  survivorship  of  the  estate  carries  with  it  surviv- 
orship of  such  powers  as  are  annexed  to  the  trust.^  But  a 
mere  personal  power  given  to  A.,  B.,  and  C.  cannot  be  exer- 
cised by  the  survivors,  if  one  die.  If,  however,  an  equitable 
power  is  annexed  to  the  trust,  and  forms  an  integral  part  of  it, 
as  if  an  estate  is  vested  in  three  trustees  upon  a  trust  to  sell, 
there,  as  the  power  is  coupled  with  an  interest,  and  the  inter- 
est survives,  the  power  also  survives.^     And  this  is  as  old  as 

1  Murray  v.  Dehon,  102  Mass.  11 ;  Mass.  Gen.  Stat.  Ch.  100,  §  9. 

^  Nicloson  V.  Wordsworth,  2  Swans.  372;  Hussey  tJ.  Markham,  Finch, 
258;  Sharp  v.  Sharp,  2  B.  &  A.  405;  Urch  v.  Walker,  3  M.  &  C.  702; 
Richardson  v.  Hulbert,  1  Anst.  65. 

3  Wilson  V.  Bennett,  5  De  G.  &  Sm.  475  ;  Burtt's  Est.  1  Drew.  319  ;  Cole 
V.  Wade,  16  Ves.  27. 

*  Ex  parte  Blackburn,  IJ.  &  W.  297;  Hibbard  v.  Lambe,  Amb.  309. 

5  See  ante,  §§  499,  502. 

6  Lane  v.   Debenham,  11  Hare,  188 ;  Peyton  v.  Bury,  2  P.  Wms.  628 ; 


§§  503-506.]  DISCRETIONARY   POWERS.  25 

Lord  Coke,  who  says, "  If  a  man  deviseth  land  to  his  executors 
to  be  sold,  and  maketh  two  executors,  and  one  dieth,  yet  the 
survivor  may  sell  the  land,  because  as  the  estate,  so  the  trust 
shall  survive ;  and  so  note  the  diversity  between  a  bare  trust 
and  a  trust  coupled  with  an  interest."  ^  At  the  present  day,  a 
trust,  that  is,  a  power  imperative,  whctber  a  bare  power  or  a 
power  coupled  with  an  interest,  would  equally  be  carried  into 
execution  in  courts  of  equity  ;  for  the  maxim  now  is,  that  "  the 
trust  or  power  imperative  is  the  estate."  And  it  is  well  settled 
that,  even  in  trusts  reposed  in  trustees  by  name,  tlie  survivor, 
if  he  takes  the  estate  with  a  duty  annexed  to  it,  can  execute  the 
power ;  and  the  rule  of  survivorship  now  applies  not  only  to 
trusts,  or  powers  imperative  which  are  construed  as  trusts,  but 
also  to  such  discretionary  powers  as  are  annexed  to  the  office 
of  trustee,  and  are  intended  to  form  an  integral  part  of  it.^ 
But  powers  merely  arbitrary  and  independent  of  the  trust,  and 
not  an  integral  part  of  it,  are  governed  by  the  rules  applicable 
to  ordinary  })Owers ;  as  where  the  trustees  by  name  have  power 
to  revoke  the  limitations,  and  change  the  property  into  a 
different  channel,  the  discretion  is  evidently  intended  to  be 
personal,  and  not  annexed  to  the  estate  or  office.'^ 

§  506.  An  unlimited  powder,  to  be  exercised  during  successive 
estates  tail,  is  not  invalid  for  remoteness,  for  such  power  may 
be  destroyed  with  the  estate  tail.'*     A  power,  collateral  to  a 

Mansell  v.  Vaughn,  Wilm.  49 ;  Eyre  v.  Shaftesbury,  2  P.  Wms.  108 ;  But- 
ler V.  Bray,  Dyer,  189  b;  Byam  v.  Byam,  19  Bear.  58;  Co.  Lit.  112  b, 
113  a;  Fhmders  V.  Clarke,  1  Ves.  9;  Potter  i).  Chapman,  Amb.  100;  Jones 
V.  Price,  11  Sim.  557. 

1  Co.  Lit.  113  a,  181  b. 

^  Lane  v.  Debenham,  11  Hare,  188;  ILill  v.  May,  3  K.  &  J.  185;  War- 
burton  V.  Sandys,  14  Sim.  622 ;  Foley  v.  Wontner,  2  J.  &  W.  246 ;  Doe  v. 
Godwin,  1  D.  R.  259 ;  Townsend  v.  Wilson,  1  B.  &  Aid.  608 ;  Jacob  v. 
Lucas,  1  Beav.  436. 

^  Lane  v.  Debenham,  11  Hare,  192;  Hazel  v.  Hogan,  47  Mo.  277; 
Hazel  V.  Woods,  47  Mo.   298; 

*  Biddle  v.  Perkins,  4  Sim.  135;  Powis  v.  Capron,  4  Sim.  138  n.  ;  War- 
ing V.  Coventry,  3  M.  &  K.  249 ;  Waliis  r.  Freestone,  10  Sim.  225. 


26  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

limitation  in  fee,  has  been  supported  where  it  was  exercised  by 
sale  within  the  limits  prescribed  against  perpetuities.^  But  how 
far  the  execution  of  such  an  unlimited  power  for  an  indefinite 
period,  and  beyond  the  limits  of  a  perpetuity,  could  be  sup- 
ported, is  not  clearly  settled.^  "Where  a  testator  devised  an 
estate  to  trustees  in  trust  for  his  brother's  first  and  other  sons 
successively  in  fee,  so  that  the  estate  and  interest  of  each  should 
go  to  his  next  brother  on  his  dying  without  issue  under  the  age 
of  twenty-one,  and  if  all  died  without  issue  under  that  age,  then 
in  trust  for  the  person  who  should  be  his  next  heir,  and  the 
trustees  had  power  to  sell  the  estate  at  their  discretion  at  any 
time  after  his  decease,  it  was  held  that  a  purchaser  must  take 
the  estate,  as  the  title  was  good,  and  the  power  did  not  contra- 
vene the  rule  against  perpetuities.^ 

§  507.  Some  powers  are  entirely  discretionary,  that  is,  it  is 
left  entirely  to  the  judgment  of  the  trustees  whether  they  will 
execute  them  at  all  or  not ;  as  where  the  trustees  are  authorized 
or  directed  to  do  a  certain  act,  or  to  abstain  from  it,  "  if  they 
think  fit "  *  or  "  proper,"  ^  or  "  at  their  discretion  ; "  ^  or  the 
power  may  be  imperative,  and  the  discretion  of  the  trustees  be 
confined  to  the  time,  manner,  and  place  of  executing  the  power, 
or  to  the  selection  of  the  objects  of  the  trust,  as  where  the  trust 
fund  is  directed  to  be  applied,  paid,  or  distributed,  "  when,"  or 
"  in  such  manner,"  or  "  in  such  proportions," ''  or  to  such  per- 

^  Boyce  V.  Hanning,  2  Cr.  &  Jer.  334. 

'  2  Sugd.  Pow.  495. 

^  Nelson  v.  Callow,  15  Sim.  225 ;  Cresson  v.  Ferree,  70  Penn.  St. 
446, 

*  Maddison  v.  Andrew,  1  Ves.  53. 

^  Crossling  v.  Crossling,  2  Cox,  396  ;  Kemp  v.  Kemp,  5  Ves.  849  ;  Long- 
more  V.  Broom,  7  Ves.  124;  Pink  v.  De  Thuisey,  2  Mad.  157. 

^  Morice  v.  Bishop  of  Durham,  9  Ves.  399;  Keates  v.  Burton,  14  Ves. 
434;  Potter  v.  Chapman,  Amb.  98;  Gibbs  v.  Rumsey,  2  V.  &  B.  294; 
Naglee's  Est.  52  Penn.  St.  154. 

''  Downer  v.  Downer,  9  Vt.  231 ;  Marlborough  v.  Godolphin,  2  Ves.  61 ; 
Walsh  V.  Wallinger,  2  R.  &  M.  78. 


§§  506-508.]  DISCRETIONARY   POWERS.  27 

son  ^  or  persons,^  within  a  certain  class  or  otherwise,  as  the 
trustees  shall  determine.  So  the  discretion  may  be  implied,  as 
where  the  execution  of  the  power  calls  for  judgment  and  dis- 
cretion in  the  trustee,  or  for  his  approbation  or  consent  to  a 
settlement,  or  sale,  or  marriage  ;  ^  or  where  he  is  called  upon 
to  decide  upon  the  conduct  of  a  party,*  or  upon  the  necessity  or 
expediency  of  any  payment  or  other  act ;  ^  or  where  he  is  di- 
rected to  pay  an  annuity,  "  unless  circumstances  should  render 
it  unnecessary,  inexpedient,  or  impracticable."  ^  All  such  mat- 
ters must  be  mere  matters  of  opinion  and  discretion. 

§  508.  Discretionary  powers  of  trustees  are  usually  divided 
into  four  principal  classes,  as  follows:  (1.)  "Where  it  is  left  to 
the  discretion  of  the  trustees  to  make  or  withhold  a  gift  or  ap- 
pointment of  the  trust  property  to  a  specified  donee,  or  cestui 
que  trust,  or  class  of  donees.  In  this  class,  if  it  is  a  condition 
precedent  to  the  gift,  legacy,  or  other  interest,  that  the  trustees 
shall  exercise  their  power  in  favor  of  the  donee,  whether  of 
appointment  or  assent,  no  interest  will  vest  in  the  donee  until 
the  power  is  exercised  ;  and  if  the  trustees  refuse  to  exercise 
it,  the  gift  cannot  be  enforced.'^  The  court  cannot  decide  upon 
the  propriety  or  impropriety  of  the  refusal  of  the  trustees  to 
give  their  assent,^  unless  it  proceed  from  selfish,  corrupt,  or 

'  Brown  v.  Higgs,  4  Ves.  708. 

*  drant  v.  Lyman,  4  Russ.  292;   Loring  v.  Blake,  98  Mass.  253. 

8  Brereton  v.  Brereton,  2  Ves.  87  n. ;  Clarke  v.  Parker,  19  Ves.  1 ;  Mort- 
lock  V.  BuUer,  10  Ves.  314. 

*  Walker  y.  Walker,  5  Mad.  424;  Robinson  v.  Smith,  6  Mad.  194;  Eaton 
V.  Smith,  2  Beav.  236. 

^  Gower  v.  Mainwaring,  2  Ves.  87. 

*  French  v.  Davidson,  3  Mad.  396. 

'  Pink  V.  De  Thuisey,  2  Mad.  157;  Walker  v.  Walker,  5  Mad.  424; 
Weller  v.  Weller,  2  Mad.  160  n. ;  French  v.  Davidson,  3  Mad.  396  ;  Brown 
r.Higgs,  4Ves.  719;  5  Ves.  508;  8  Ves.  568;  M.arlborough  v.  Godolphin, 
2  Ves.  61;  Lyman  v.  Parsons,  26  Conn.  493;  28  Barb.  564,  reversing  4 
Bradf.  268.  See  S.  C.  20  N.  Y.  103  ;  N.  Y.  Rev.  St.  part  2,  c.  1,  tit.  2,  art. 
3,  §  9;  Grace  v.  Phillips,  2  Phil.  701;  Leavitt  v.  Beirne,  21  Conn.  1. 

8  Pink  V.  De  Thuisey,  2  Mad.  162  n. 


23  SPECIAL   POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

improper  motives  ;  and  the  burden  is  upon  the  donee  to  prove 
such  motives,  and  not  upon  the  trustees  to  show  good  reasons 
for  their  action. ^  The  court  will,  however,  always  strive  to 
construe  this  class  of  powers  into  trusts,  which  will  give  the 
donee  a  vested  interest,  and  the  trustee  only  the  power  of  selec- 
tion, apportionment,  and  distribution.^  (2.)  Where  the  discre- 
tionary power  is  confined  to  the  selection  from,  or  apportionment 
to,  or  distribution  among,  the  objects  of  the  trust.  This  class  of 
powers  is  held  to  create  trusts.  The  beneficial  interest  is  gen- 
erally vested  in  the  whole  class  of  objects  from  which  the  trus- 
tees have  the  power  of  selection,  to  be  divested  out  of  those 
who  are  not  selected  by  the  trustees  in  the  exercise  of  the 
power,  and  if  the  trustees  die,  or  refuse  to  execute  the  powers, 
the  whole  class  takes  the  property.^  (3.)  Where  the  discretion 
applies  to  some  ministerial  act  connected  with  the  estate,  such 
as  powers  of  leasing,  selling,  appointing  new  trustees,  felling 
timber,  and  the  like.  This  class  of  powers  is  much  more  under 
the  control  of  courts,  than  powers  depending  upon  the  exercise 
of  opinion  and  judgment.*  The  court  can  enter  into  all  mat- 
ters in  relation  to  those  things  that  are  beneficial  to  the  estate, 
and  into  the  motives  of  the  trustees  for  exercising  or  refusing 
to  exercise  these  powers  ;  and  the  courts  will  not  allow  the 
trustees  to  exercise  their  powers  in  this  respect  in  an  arbitrary 
or  capricious  manner ;  ^  but  if  the  court  has  acquired  jurisdic- 
tion of  the  case  by  bill  or  decree,  the  trustees  must  act  under 
the  sanction  of  the  court  in  appointing  new  trustees,  making 
investments,  sales,  leases,  and  in  varying  the  securities,^  unless 

»  Clarke  v.  Parker,  19  Ves.  11 ;  French  v.  Davidson,  3  Mad.  402. 

2  Wainwright  v.  Waterman,  1  Ves.  Jr.  311;  Keates  v.  Burton,  U  Yes, 
434;  ante,  §§  248-258;  Cochran  v.  Paris,  11  Grat.  356. 

2  Loring  v.  Blake,  98  Mass.  253.  The  whole  matter  of  powers  as  trusts 
is  discussed,  ante,  §§  248-258,  and  the  cases  are  cited,  which  see. 

*  Milsington  v.  Mulgrave,  4  Mad.  491 ;  Ilewit  v.  Hewit,  Amb.  508 ;  Mort- 
imer V.  Watts,  14  Beav.  616. 

*  Ibid.;  Webb  v.  Shaftesbury,  7  Ves.  480;  Attorney-General  i'.  Clack, 
1  Beav.  467 ;  De  Manneville  v.  Crompton,  1  V.  »fe  B.  359. 

®  Ibid. ;  Booth  v.  Booth,  1  Beav.  125 ;  Pocock  v.  Reddington,  5  Ves. 


§§  508,  509.]  HOW   EXERCISED.  29 

the  instrument  of  trust  declares  that  their  discretion  is  to  be 
uncontrolled.^  And  (4)  where  the  discretion  to  be  exercised  is 
a  mere  matter  of  personal  judgment,  as  where  the  consent  or 
approbation  of  the  trustees  is  required  to  a  marriage,  or  to  the 
conduct  of  an  individual.  The  trustees  alone  can  exercise  these 
powers,  and  courts  cannot  generally  interfere  to  control  these 
mere  personal  judgments  upon  personal  matters.^  But  the 
trustees  must  exercise  a  reasonable  discretion ;  thus  they  ought 
not  to  pay  money  into  the  hands  of  a  lunatic  or  drunkard  to  be 
wasted.^  If  they  have  power  to  make  advances  to  set  up  chil- 
dren in  business,  they  may  make  advances  to  a  married  daughter 
to  set  up  her  husband  in  business,  but  not  to  pay  off  his  debts.^ 
And  if  they  have  once  executed  the  power  by  naming  a  sum  to  be 
paid,  they  cannot  reduce  it,°  but  in  some  cases  they  may  make 
a  further  advance.^  And  it  is  always  a  question  for  the  courts 
to  determine  whether  the  action  of  tlie  trustees  in  a  given  case 
is  within  the  discretionary  powers  given  them  by  the  instru- 
ment of  trust.'^ 

§  509.  A  general  power  in  trustees  to  vary  securities  con- 
fers upon  them  power  to  do  all  the  acts  incidental  or  essential 
to  the  performance  of  that  duty,  and  therefore  they  may  sell 
and  give  receipts  to  purchasers  for  the  purchase-money.^  This 
is  a  power  given  for  the  security  of  the  estate  and  benefit  of 

794;  Parry  v.  Warrington,  6  Mad.  155;  Brice  v.  Stokes,  11  Ves.  324; 
Lord  V.  Godfrey,  4  Mad.  459 ;  Broadlmrst  v.  Balguy,  1  N.  C.  C.  28.  And 
see  Cafe  v.  Bent,  3  Hare,  245,  and  Hitch  v.  Leworthy,  2  Hare,  405. 

'  Milsington  v.  Mulgrave,  3  Mad.  403 ;  Lee  v.  Young,  2  N.  C.  C.  536. 

•'  Cole  t'.  Wade,  16  Yes.  27;  Walker  v.  Walker,  5  Mad.  424;  Eton  v. 
Smith,  2  Beav.  236;  Cochran  v.  Paris,  11  Grat.  356;  French  v.  Davidson, 
3  Mad.  396 ;  Brereton  v.  Brereton,  2  Ves.  87  n. ;  Clarke  v.  Parker,  19  Ves. 
11 ;  Weller  v.  Ker,  1  H.  L.  Scott,  11. 

8  Gott  V.  Cook,  7  Paige,  538;  Mason  v.  Jones,  2  Barb.  S.  C.  248. 

*  Talbott  V.  Marshfield,  L.  R.  4  Eq.  661. 

'  Mason  t'.  Mason,  4  Sand.  Ch.  631;  Weller  v.  Ker,  1  H.  L.  Scot.  11. 

^  Webster  v.  Boddington,  16  Sim.  177. 

'  Trustees  of  Smith  v.  Northampton,  10  Allen,  498. 

8  Wood  V.  Harman,  5  Mad.  368.     See  ante,  §  466. 


30  SPECIAL   POWEES    OF   TRUSTEES.  [CHAP.  XVI. 

the  trust  property  ;  ^  and  it  ought  not  to  be  exercised  except 
when  required  by  necessity  or  convenience,-  and  upon  proper 
inquiry  and  circumspection.^  Therefore  trustees  ouglit  always 
to  have  an  immediate  and  advantageous  investment  in  view 
before  they  sell  the  existing  securities.^  A  sale  for  the  mere 
purpose  of  converting  real  estate  into  personal,  or  vice  versa, 
or  without  some  well  defined  and  proper  purpose  in  view, 
would  render  them  responsible  for  any  loss.^  Each  trustee 
must  be  satisfied  by  inquiries  of  the  propriety  of  the  act,  and 
he  must  not  trust  to  the  representations  of  his  cotrustee.^ 
This  power  is  necessarily  left  in  a  large  degree  to  the  sound 
discretion  of  the  trustees  ;'''  and  if  any  check  is  imposed  upon 
their  discretion,  as  if  the  consent,  or  the  consent  in  writing,  of 
the  cestui  que  trust,  or  any  other  formalities  are  required  before 
the  trustees  can  act,  they  must  strictly  comply  with  all  such 
requirements.^  If  the  trustees  have  a  discretionary  power  of 
changing  the  investments  with  the  consent  of  the  tenant  for 
life,  the  court  cannot  compel  them  to  exercise  the  power  at  the 
request  of  the  tenant  for  life,  if  they  refuse  to  do  so  in  the  bo7ia 
fide  exercise  of  their  discretion.^  But  where  the  power  is  im- 
perative on  the  trustees  to  invest  in  any  particular  securities, 
at  the  request  of  the  cestuis  que  trust,  the  court  will  compel 
them  to  exercise  the  power. ^'^     But  if  the  power  is  imperative, 

1  Lord  V.  Godfrey,  4  Mad.  459. 

2  Broadhurst  v.  Balguy,  1  N.  C.  C.  28. 

8  Hanbury  v.  Kirkland,  3  Sim.  271 ;  Wormley  v.  Wormley,  1  Brock.  330 ; 
8  Wheat.  421. 

*  Ibid. ;  Watts  v.  Girdlestone,  6  Beav.  188. 

^  Brice  v.  Stokes,  11  Ves.  324;  Meyer  v.  Montriou,  5  Beav.  146. 
^  Hanbury  v.    Kirkland,   3    Sim.    265;    Broadhurst    v.   Balguy,    1   N. 
C.  C.  16. 

">  De  Manneville  v.  Crompton,  1  V.  &  B.  354. 

*  Ibid. ;    Cocker  v.  Quayle,  1  R.  &  M.  535 ;   Greenwood  v.  Wakeford, 
1  Beav.  579 ;  Kellaway  v.  Johnson,  5  Beav.  319. 

^  Prendergast  v.  Prendergast,  3  H.  L.  Ca.  195;  Lee  v.  Young,  2  N.  C. 
C.  532. 

1"  Ross  V.  Goodsall,  1  N.  C.  C.  618;   Beauclerk  v.  Ashburnham,  8  Beav. 
322. 


§§  509,  510.]  HOW  EXERCISED.  31 

and  there  has  been  a  great  change  of  circumstances,  as  where 
the  cestuis  que  trust,  or  their  connections,  to  whom  the  trustees 
were  required  to  loan  the  trust  fund,  have  become  bankrupt, 
the  court  will  not  compel  the  trustees  to  exercise  the  power.^ 
The  exercise  of  the  power  of  varying  the  securities  cannot 
alter  or  change  the  rights  of  the  cestuis  que  trust ;  on  the  other 
hand,  the  rights  of  the  cestuis  que  trust  will  be  the  same 
whether  the  trustees  invest  the  fund  in  real  or  personal  estate.^ 
Power  to  vary  the  securities  is  a  visual  power  to  be  inserted  in 
settlements  with  the  usual  powers.^ 

§  510.  In  early  times,  courts  assumed  jurisdiction  and  con- 
trol over  discretionary  powers  in  trustees,  and  compelled  trus- 
tees to  execute  them,  or  the  court  itself  executed  the  powers  in 
such  manner  as  it  judged  most  beneficial  for  the  cestuis  que 
trust  ;^  but  this  jurisdiction  is  now  repudiated,  and  courts  will 
not  exercise  a  mere  discretionary  power,  either  during  the  life- 
time of  the  trustees,  or  after  their  death  or  refusal  to  execute 
it.^  But  if  the  power  is  in  the  nature  of  a  trust  for  a  class, 
with  a  power  of  selection  in  the  trustees  of  particular  persons 
of  the  class,  and  the  trustees  die  or  refuse  to  make  the  selec- 
tion, the  courts  will  still  execute  the  trust  for  the  whole  class." 
In  one  case  a  distinction  was   attempted  to   be   established 

»  Ibid. 

2  Lord  V.  Godfrey,  4  Mad,  455;  Walter  v.  Maunde,  19  Ves.  424. 

'  Sampayo  v.  Gould,  12  Sim.  426. 

*  Flanders  v.  Clarke,  1  Ves.  10;  Wainwright  v.  Waterman,  1  Ves.  Jr. 
311;  Clarke  v.  Turner,  2  Freem  198;  Gower  v.  Mainwaring,  2  Ves.  87, 
110;  Hewit  v.  Hewit,  Amb.  508;  Carr  v.  Bedford,  2  Ch.  R.  77 ;  Warbur- 
ton  V.  Warburton,  2  Ch.  R.  420;  1  Bro.  P.  C.  34;  Wareham  v.  Brown,  2 
Vern.  153. 

*  Maddison  v.  Andrew,  1  Ves.  60;  Alexanders.  Alexander,  2  Ves.  640; 
Kemp  V.  Kemp,  5  Ves.  Jr.  849 ;  Keates  v.  Burton,  14  Ves.  437 ;  2  Sugd. 
Pow.  190 ;  Gower  v.  Mainwaring,  2  Ves.  88 ;  Brereton  v.  Brereton,  2  Ves. 
88  n. ;  Potter  v.  Chapman,  Amb.  98;  Lee  r.  Young,  2  N.  C.  C.  522;  Cap- 
lin's  Will,  11  Jur.  (n.  s.)  383;  Prendergast  v.  Prendergast,  3  H.  L.  Ca. 
195;  Coe's  Trust,  4  K.  &  J.  199;  Eldredge  v.  Head,  106  Mass.  582. 

*  Ante,  §§  255-258,  and  cases  cited. 


32  EXECUTION    OF    POWERS.  [CHAP.  XVI. 

between  a  discretion  in  the  trustee  to  be  exercised  upon  mat- 
ters of  opinion  and  judgnwit^  and  a  discretion  to  be  exercised 
upon  matters  of  fact;  as  where  the  trustees  were  to  exercise 
certain  powers  over  the  estate,  if  the  conduct  of  one  of  the 
beneficiaries  was  such  as  to  gain  their  confidence  and  approval, 
the  court  seemed  to  distiuguish  between  matters  of  judgment 
and  matters  of  fact,  and  directed  an  inquiry. ^  Lord  Hardwicke 
seemed  to  give  some  countenance  to  this  distinction,^  but  the 
distinction  is  not  established  and  acted  upon  ;  and,  in  the  nature 
of  things,  such  a  distinction  cannot  be  applied  to  the  execution 
of  powers  by  trustees.  It  is  sufficient  to  hold  them  to  good 
faith  and  fair  intentions  in  the  conduct  of  the  trust.  It  was 
held,  however,  in  Holcomb  v.  Holcomb,  that  a  discretion  entirely 
beyond  the  control  of  courts  of  equity  could  not  be  conferred 
upon  trustees,  and  that  courts  could  set  aside  acts  done  by 
trustees  under  a  power  so  unlimited.^ 

§  511.  If  the  trustees  exercise  their  discretionary  powers  in 
good  faith  and  without  fraud  or  collusion,  the  court  cannot 
review  or  control  their  discretion.^  Nor  will  a  bill  be  enter- 
tained to  compel  the  execution  of  a  mere  discretionary  power." 

i  Walker  r.  Walker,  5  Mad.  424. 

-  Gower  v.  Mainwaring,  2  Ves.  87-110. 

3  Holcomb  V.  Holcomb,  3  Stockt.  281. 

*  Smith  V.  Wildman,  37  Conn.  384;  Potter  v.  Chapman,  Amb.  98;  Cow- 
ley V.  Hartstonge,  1  Dow,  378 ;  Prendergast  v.  Prendergast,  3  H.  L.  Ca. 
195;  Attorney-General  v.  Moseley,  12  Jur.  889;  2  De  G.  &  Sin.  398;  Pink 
V.  De  Thuisey,  2  Mad.  157  ;  Clarke  v.  Parker,  19  Ves.  11 ;  French  v.  David- 
son, 3  Mad.  396 ;  Wood  v.  Richardson,  4  Beav.  177 ;  Morton  v.  Southgate, 
28  Me.  41;  Littleficlu  v.  Cole,  33  Me.  552;  Leavitt  v.  Beirne,  21  Conn.  2  ; 
Hawley  v.  James,  5  Paige,  485 ;  Arnold  v.  Gilbert,  3  Sand.  Ch.  556 ; 
Mason  v.  Mason,  4  Sand.  Ch.  623;  Bunner  v.  Storm,  1  Sand.  Ch.  357; 
Gochenauer  v.  Froelich,  8  Watts,  19 ;  Chew  v.  Chew,  28  Penn.  St.  17 ; 
Cowles  V.  Brown,  4  Call.  477;  Cochran  v.  Paris,  11  Grat.  356;  Cloud  v. 
Martin,  1  Dev.  &  Bat.  397 ;  Aleyn  v.  Belchier,  1  Lead.  Ca.  Eq.  304.  And 
see  Berry  v.  Hamilton,  10  B.  Mon.  135;  Smith  y.  Wildman,  37  Conn.  884; 
O'Bannon  u.  Musselman,  2  Dev.  523;  Eldredge  v.  Head,  106  Mass.  582; 
Pulpass  V.  African  Church,  48  Penn.  St.  204. 

=  Brereton  v.  Brereton,  2  Ves.  87  n.;  Pink  v.  De  Thuisey,  2  Mad.  167 ; 
Green  v,  McBeth,  12  Rich.  Eq.  254. 


§§  510,  511.]  CONTROL   BY   COURTS.  33 

The  refusal  of  a  trustee  to  exercise  such  a  power  is  no  l)reach 
of  trust  for  which  he  can  be  removed,  though  he  gives  no  rea- 
son for  his  refusal,  and  though  the  execution  of  the  power 
would  appear  to  be  proper  and  beneficial  to  the  estate.^  But 
while  the  court  cannot  interfere  with  a  discretion  honestly 
exercised,  a  party  interested  in  property  subject  to  the  discre- 
tion of  a  trustee,  has  a  right  to  institute  a  bill  for  a  discovery 
of  the  property,  and  also  of  all  the  acts  of  the  trustee,  and  the 
reasons  for  the  acts,  in  order  that  it  may  be  seen  whether  the 
discretion  of  the  trustee  is  honestly  exercised  or  not.  And  if 
the  administration  of  the  trust  is  thus  rightfully  brought  within 
the  jurisdiction  of  the  court,  the  power  may  be  required  to  be 
exercised  under  the  eye  of  the  court,  though  the  exercise  of  it 
must  still  remain  in  the  discretion  of  the  trustee,  and  not  in 
that  of  the  court.^  And  so  if  the  exercise  of  a  discretionary 
power  entirely  miscarries,  the  court  may  take  jurisdiction  of 
the  administration  of  the  trust.^  It  has  been  ruled,  however, 
that  the  trustees  might  exercise  their  discretionary  jjowers, 
although  a  bill  had  been  filed  for  the  purpose  of  having  the 
trusts  declared  and  carried  into  effect.*  The  trustee  cannot, 
however,  exercise  his  discretion  from  any  fraudulent,  selfish, 
or  improper  purposes,  nor  can  he  refuse  to  exercise  a  discre- 
tionary power  for  any  such  purposes ;  nor  can  the  power  be 
executed  in  an  illusory  or  collusive  manner.^  And  if  he  acts, 
or  refuses  to  act,  upon  such  grounds,  the  court  will  interfere 
and  give  a  remedy  to  the  parties  injured  by  the  fraudulent  act, 
or  refusal  to  act,  not  for  the  purpose  of  controlling  the  discre- 
tion of  the  trustee,  but  to  relieve  the  parties  from  the  conse- 
quences of  an  improper  exercise  of  the  discretion  ;  *^  and  if  the 

*  Lee  V.  Young,  2  N.  C.  C.  532. 

*  Costabadie  v.  Costabadie,  6  Hare,  410. 

»  Feltham  v.  Turner,  23  L.  T.  (s.  s.)  345. 

*  Sillibourne  v.  Newport,  1  K.  &  J.  603. 

*  Carson  v.  Carson,  1  Wins.  N.  C.  24. 

«  Clarke  v.  Parker,    lU  Ves.   12;    Peyton  v.  Bury,  2  P.   Wins.   628; 
French  v.  Davidson,  3  Mad.  396;  Dashwood  v.  Bulkeley,  10  Ves.   245; 

VOL.  II.  3 


34  EXECUTION    OF   POWERS.  [CHAP  XVI. 

trustee  refuses  to  exercise  his  discretion  from  selfish  and  inter- 
ested motives,  as  where  he  declines  to  give  his  consent  to  a 
sale,  marriage,  or  settlement,  the  court  may  compel  him  to 
assent.^ 

§  511  a.  It  is  proper  further  to  saj,  that  courts  do  not  favor 
constructions  that  confer  upon  trustees  absolute  and  uncon- 
trollable powers.  The  donee  of  the  power  is  not  the  absolute 
owner  of  the  property  ;  most  frequently  he  has  no  beneficial  or 
other  interest  it,  but  simply  a  power  over  it  for  the  benefit  of 
third  persons.^  The  owner  of  property  may  of  course  confer 
upon  another  an  absolute  and  uncontrollable  power  over  it ; 
but  it  is  the  policy  of  the  law  to  limit  irresponsible  power  as 
much  as  possible,  and  to  subject  the  conduct  of  every  person 
having  the  rights  and  interests  of  others  in  his  power,  to  the 
regulations  and  control  of  the  rules  of  law.^  Wherever  the 
law  can  control  the  exercise  of  a  discretionary  power,  it  will 
do  so ;  as  where  a  trustee  had  power  to  expend  the  principal  of 
an  estate  for  the  benefit  of  a  poor  woman,  "  if  urgent  necessity 
should  require,"  it  was  held,  that  the  court  could  compel  the 
execution  of  the  power.^  So,  also,  courts  can  interfere  and  pre- 
vent, by  injunction  or  decree,  an  abusive,  fraudulent,  collusive, 
illusive,  or  other  improper  exercise  of  a  discretionary  power.^ 
To  determine  what  is  an  abuse  of  a  discretionary  power,  or 
what  is  a  fraudulent  or  improper  execution  of  it,  is  frequently 
a  matter  of  great  difficulty.  In  the  nature  of  things,  only 
very  general  rules  can  be  laid  down  upon  a  subject  where  so 
much  must  depend  upon  the  facts  of  each  individual  case. 

D'Aguilar  v.  Drinkwater,  2  V.  &  B.  225;  Kemp  v.  Kemp,  5  Ves.  849; 
Mesgrett  v.  Mesgrett,  2  Vern.  580;  10  Ves.  243;  Topham  v.  Portland,  L. 
R.  5  Ch.  40. 

1  Norcum  v.  D'Oench,  2  Bennett,  Mo.  98. 

'  Topham  v.  Duke  of  Portland,  1  De  G.,  J.  &  S.  568. 

3  Anie,  §  249. 

*  Erisman  v.  Directors  of  Poor,  47  Penn.  St.  509. 

*  Ante,  §  511;  McFarland's  App.   1  Wright,  205;  Pulpress  r.  African 
Church,  48  Penn.  St.  210. 


§§511,  511  a.]  MOTIVES   LEADING   TO,   ETC.  35 

Some  general  propositions  have,  however,  been  stated.  It 
has  been  said,  (1.)  That  where  a  power  of  electing  is  given 
to  trustees,  as  to  the  rights  of  third  persons,  they  are  bound 
to  exercise  such  power  most  beneficially  for  the  cestuis  que 
trust}  (2.)  Reference  must  always  be  had,  in  the  execution  of 
a  power,  to  the  end  or  purpose  intended  by  the  creator  of  the 
power,  and  this  end  or  purpose  must  be  gathered  from  a  con- 
struction of  the  written  instrument ;  and  a  power  must  always 
be  executed  bona  fide  for  the  end  and  purpou  designed?  (3.)  A 
power  cannot  be  executed  in  favor  of  the  donee  of  the  power, 
or  of  his  family,  unless  the  instrument  specially  authorized 
him  so  to  do.^  (4.)  The  donee  of  a  power  cannot  execute  it 
for  any  pecuniary  gain,  directly  or  indirectly,  to  himself."*  Nor 
(5.)  can  he  exercise  it  for  any  otlier  purposes  personal  to  him- 
self.^    A  distinction  is  made  between  the  motives  which  lead  to 

'  Haynesworth  v.  Cox,  Harp.  Eq.  R.  119. 

^  Aleyn  v.  Belchier,  1  Eden,  132 ;  1  Lead.  Ca.  in  Eq.  304,  and  cases 
cited.  ^  Ante,  §  254,  and  cases  cited. 

*  Lord  Sandwich's  Case,  referred  to  in  McQueen  v.  Farquhar,  11  Yes. 
480,  and  in  Keily  v.  Keily,  4  Dr.  &  War.  55 ;  Lady  Wellesley  v.  The 
Earl  of  Mornington,  2  K,  &  J.  143 ;  In  re  Marsden's  Trusts,  4  Drew.  594 ; 
Fearon  v.  Desbrisay,  14  Beav.  635 ;  Beere  v.  Hoffiuister,  23  Beav.  101 ; 
Daubeny  v.  Cockburn,  1  Mer.  640 ;  Birlcy  v.  Birley,  25  Beav.  299 ;  Watt 
V.  Creyke,  3  Sm.  &  Giff.  362 ;  Lee  v.  Fernie,  1  Beav.  483 ;  Vane  v.  Dun- 
gannon,  2  Sch.  &  Le.  118;  Home  v.  Askham,  12  Beav.  503;  Rowley  v. 
Rowley,  Kay,  242,  262;  Lysaght  v.  Royse,  2  Sch.  &  Le.  151;  Lane  v. 
Page,  Amb.  233;  Butcher  v.  Johnson,  14  Sim.  444;  Wright  v.  Goff,  22 
Beav.  207  ;  Campbell  v.  Home,  1  Y.  &  C.  C.  C.  664;  Wheate  v.  Hall,  17  Vos. 
80 ;  Carver  v.  Bowles,  2  R.  «&  My.  301 ;  Re  Beloved  Wilkes's  Charity,  3  i\Lic. 
&  G.  440,  7  Eng.  L.  &  Eq.  85 ;  Henchinbroke  v.  Seymour,  1  Bro.  Ch. 
394;  Huguenin  y.  Baseley,  14  Ves.  273;  Ring  w.  Ilardwick,  2  Beav.  352; 
Lassen  e  v.  Tierney,  1  Mac.  &  G.  551 ;  Saunders  v.  Vautier,  1  Cr.  &  Phil. 
240;  Sadler  v.  Pratt,  5  Sim.  632;  Sugd.  on  Powers,  606  (8th  ed.);  Agassiz 
V.  Squire,  18  Beav.  431;  Fanner  v.  Martin,  2  Sim.  502;  Wallgravc  v. 
Tebbs,  2  K.  &  J.  313;  Tee  v.  Ferris,  2  K.  &  J.  357;  Loma.x  r.  Ripley, 
3  Sm.  &  Giff.  48;  Stroud  v.  Norman,  Kay,  313;  Alexanders.  Alexander, 
Kay,  242;  White  v.  St.  Barbe,  1  Ves.  &  B.  399 ;  Scroggs  v.  Scroggs,  Amb. 
272. 

*  Dummer  v.  Chippenham,  14  Ves.  245  ;  Re  Beloved  Wilkes's  Charity,  3 
Mac.  &  G.  440;  7  Eng.  L.  &  Eq.  85. 


36  EXECUTION    OF   POWERS.  [CHAP.  XVI. 

the  execution  of  a  power,  and  the  purpose  or  end  for  which  it  is 
executed.  Thus,  a  power  may  be  properly  executed  according 
to  the  true  purpose  and  intent  of  the  creator  of  the  power,  but 
the  motives  which  led  the  donee  to  such  execution  may  have 
been  corrupt.  On  the  other  hand,  a  power  may  have  been 
improperly  executed  by  the  donee  of  the  power,  induced  thereto 
by  motives  commendable  in  themselves,  as  by  filial  obedience, 
or  affection.!  A  trust  is  always  to  be  discharged  in  the  most 
faithful  and  conscientious  manner,  and  equity  takes  care  to 
guard  and  protect  a  trustee  in  the  discharge  of  his  duties, 
while  by  its  strict  rules  it  shields  him  from  temptation  so  far 
as  possible,  by  rendering  it  difficult  for  him  to  gain  any  advan- 
tage to  himself  by  his  dealings  with  the  trust  fund.  More 
especially  is  this  the  rule  in  the  exercise,  by  a  trustee,  of  so 
many  and  so  great  discretionary  powers  over  the  rights  and 
interests  of  persons  who  are  in  no  position  to  protect  them- 
selves. In  the  exercise  of  such  powers,  the  trustee  should  act 
with  purity  of  purpose,  and  with  a  single  view  to  carry  out  the 
exact  purpose  of  the  power,  and  the  intention  of  the  settlor. 
If  the  execution  of  a  power  of  appointment  fails,  or  if  the 
appointment  is  set  aside  as  improperly  made,  the  donee  jnay 
make  a  new  appointment  ;'^  but  if  an  appointment  is  set  aside 
by  reason  of  what  has  taken  place  between  the  donee  of  the 
power  and  the  appointee,  a  second  appointment  by  the  same 
donee  to  the  same  appointee  cannot  be  sustained  otherwise 
than  by  clear  proof,  on  the  part  of  the  appointee,  that  the 
second  appointment  is  perfectly  free  from  the  original  taint 
which  attached  to  the  first  appointment.^ 

'  Topham  v.  Portland,  L.  R.  5  Ch.  57  ;  1  De  G.,  J.  &  S.  571. 

*  Topham  v.  Portland,  11  H.  L.  Ca.  32;  L.  R.  5  Ch.  40. 

'  Topham  v.  Portland,  L.  R.  5  Ch.  60,  61 ;  Birley  i;.  Birley,  25  Beav. 
299 ;  Carver  v.  Richards,  27  Beav.  488,  1  De.  G.,  F.  &  J.  548. 

The  great  case  of  Topham  v.  Duke  of  Portland  involved  most  of  the 
learning  upon  the  subject  of  appointment  under  powers.  The  great  ques- 
tion was  whether  an  appointment,  which  excluded  Lady  Mary  Bentinck  from 
the  enjoyment  of  certain  property,  was  made  in  accordance  with  the  intent 


§§  511  a,  511  5.]  MANNER   OP   EXECUTION.  37 

§  511  h.  The  execution  of  a  power  requires  careful  considera- 
tion.    If  the  manner  of  its  execution  is  not  pointed  out,  it  must 

and  purpose  of  the  power,  or  whether  the  appointment  was  made  under  the 
influence  of  personal  reasons,  she  having  married  Colonel  Tophani  fontrary 
to  the  wishes  of  her  family.  It  was  first  heard  by  Sir  Jolin  Koniiliy,  Master 
of  the  Rolls,  and  reported  31  Beav.  .52.5.  The  Master  of  tiie  Rolls  decided 
that  the  appointment  was  void.  The  duke  appealed,  and  the  case  was  heard 
by  the  Lord  Justices  Turner  and  Knight  Bruce.  1  De  G.,  J.  &  S.  517. • 
The  decree  of  the  Master  of  the  Rolls  was  affirmed.  An  appeal  was  taken 
to  the  House  of  Lords,  where  the  decree  was  again  sustained.  11 IL  L.  Ca.  32. 
The  Duke  of  Portland  then  made  a  new  appointment  of  the  same  appointee, 
and  Lady  Mary  again  brought  her  bill  to  set  aside  the  second  appoint- 
ment. It  was  heard  before  the  Vice-Chancellor,  Sir  William  M.  James,  and 
the  second  appointment  set  aside.  See  L.  R.  5  Ch.  49.  An  appeal  was 
again  taken,  which  was  heard  before  the  Lord  Justices,  and  the  decree  set- 
ting aside  the  second  appointment  was  sustained.  See  Topham  v.  Portland, 
L.  R.  0  Ch.  40.  Lord  Justice  Sir  George  M.  Gilford  concluded  his  opinion 
as  follows:  "If  the  object  of  the  appointment  in  this  case  had  been  simjily 
the  benefit  of  the  Duke  of  Portland  himself,  I  am  persuaded  he  would  never 
have  come  into  court.  The  real  object,  though  morally  speaking  far  dilfer- 
ent,  must,  legally  speaking,  be  considered  on  precisely  the  same  principles 
as  though  he  sought  a  benefit  for  himself;  or  the  object  is  to  bring  about  a 
state  of  things  not  warranted  by  the  powers.  It  may  be  that,  on  consider- 
ation, the  Duke  of  Portland  will  concur  in  the  opinion  that  the  matter  may 
from  henceforth  be  well  left  at  rest."     And  it  has  rested. 

In  the  case  of  the  Library  Company  of  Philadelphia  v.  \Villiams,  30  Legal 
Intel.  177  (May  20,  1873),  73  Penn.  St.  249,  the  e-xercise  of  a  discretionary 
power  by  a  trustee  was  much  discussed.  Dr.  Rush  gave  to  his  trustee  a  large 
amount  of  property  in  trust  for  the  Library  Company,  and  gave  the  trustee 
power  to  select  a  parcel  of  land,  and  construct  a  library  building  for  tlie  com- 
pany. Dr.  Rush  afterwards  negotiated  for  the  i)urchase  of  a  lot  of  land,  and 
procured  a  pledge  or  promise  from  the  trustee  that  he  would  select  tliat  i)ar- 
ticular  lot  for  the  purpose  of  the  library  building.  Having  made  the  selection, 
after  the  death  of  Dr.  Rush,  the  Library  Company  brought  a  bill  to  correct 
the  execution  of  the  power,  on  the  ground  that  the  trustee  had  incapacitated 
himself  from  exercising  the  power  with  a  sound  judgment  and  a  free  dis- 
cretion, for  the  reason  that  he  had  bound  iiis  judgment  and  discretion  by 
his  promise  and  pledge  to  the  testator.  This  view  of  the  case  was  sustained 
in  an  able  opinion  in  the  court  below;  but,  upon  appeal  to  the  Supreme 
Court  of  Pennsylvania,  the  judges,  without  expressly  adirming  or  disaflirniing 
the  law  as  claimed  by  the  Library  Company,  found  the  facts  to  be,  that  tiie 
trustee  was  not  incapacitated,  and  that  he  had  made  a  full  and  free  exercise 
of  his  judgment  and  discretion  in  the  execution  of  his  power,  and  that  the 
power  was  properly  executed.     The  court,  however,  seemed  to  be  of  the 


88  EXECUTION    OF    POWERS.  [CHAP.  XVI. 

be  executed  in  good  faith,  in  the  usual  manner  of  doing  the  busi- 
ness to  be  done  under  the  power ;  and  tliere  must  be  a  strict  adher- 
ence, not  only  to  the  substance  of  the  power,  but  also  to  all  the 
formalities  required  in  its  execution  by  the  instrument.  These 
formalities  and  solemnities  are  required  for  the  protection  of 
those  persons  whose  rights  may  be  defeated  by  tlie  exercise  of 
.the  power,  and  to  prevent  the  donee  of  the  power  from  acting 
with  haste  and  without  proper  consideration.^  If  a  writing  is 
required,  a  parol  disposition  would  be  void,  although  the  prop- 
erty might  otherwise  be  disposed  of  by  parol  at  law.^  If  it  is 
to  be  by  deed,  nothing  but  a  deed  will  execute  the  power,  even 
though  it  is  to  be  executed  by  a  married  woman  ;  and  it  must  be 
signed,  sealed,  acknowledged,  delivered,  and  recorded.^  If  the 
number  of  witnesses  is  named,  that  number  must  witness  to 
the  instrument  that  purports  to  execute  the  power.^  If  the 
consent  of  any  third  person  must  be  had  to  the  execution,  such 
consent  must  appear  ;  ^  so  if  the  deed  is  to  be  sealed.^  If  it  is 
to  be  signed,  it  must  be  signed  by  the  donee  of  the  power.'^  If 
notice  is  to  be  given  of  tlie  execution  of  the  power,  such  notice 

« 

opinion  that  the  donee  of  a  power  might  pledge  himself  to  the  creator  of 
the  power  to  execute  it  in  a  certain  manner,  and  that  an  execution  of  the 
power  in  pursuance  of  the  pledge  might  still  be  good. 

^  Hawkins  v.  Kemp,  3  East,  410 ;  Rex  v.  Anstrey,  6  M.  &  Sel.  324 ; 
Holmes  v.  CoghiU,  7  Ves.  506;  Day  v.  Thwaites,  3  Ch.  Ca.  69,  107. 

^  Thruxton  v.  Att'y-Gen.  1  Vern.  340. 

3  Digges's  Case,  1  Rep.  73 ;  Dundas  v.  Biddle,  2  Barr,  160. 

*  Bath  V.  Montague's  Case,  3  Ch.  Ca.  55,  2  Freem.  193 ;  Kibbett  r. 
Lee,  Hob.  312,  Ch.  Ca.  90;  Doe  v.  Keir,  4  Man.  &  Ry.  101 ;  Wright  v. 
Wakeford,  17  Ves.  454.  It  was  formerly  held  that  the  attestation  of  the 
witnesses  must  be  noticed  in  the  deed  itself.  Wright  v.  Wakeford,  17  Ves. 
454;  Wright  v.  Barlow,  3  Maule  &  Sel.  512.  But  the  rule  is  now  relaxed, 
and  it  is  sufficient  that  the  witnesses  in  fact  attest  the  writing.  Vincent  v. 
Beshopre,  5  Exch.  683 ;  Burdett  v.  Spilsbury,  6  Man.  &  G.  386 ;  Ladd  v. 
Ladd,  8  How.  30-40. 

*  Hawkins  v.  Kemp,  3  East,  410;  Mansell  v.  Mansell,  Wilm.  36. 
«  Dormer  v.  Thurland,  2  P.  Wm.  506. 

■^  Bird  V.  Stride,  Bridg.  21 ;  Thayer  v.  Thayer,  Palm.  112  ;  Blackvllle  v. 
Ascott,  2  Eq.  Ca.  Abr.  654. 


§  511  6.]  MANNER   OF   EXECUTION.  89 

must  be  shown ,^  and  so  of  the  slightest  formality  prescribed. 
If  the  power  is  to  be  executed  by  deed,  it  cannot  be  executed 
by  will.2  The  converse  of  the  proposition  is  also  true,  and  a 
power  to  be  executed  by  a  will  cannot  be  executed  by  a  deed, 
or  any  instrument  to  take  effect  during  the  life-time  of  the 
donee  of  the  power.^  Whether  the  execution  of  the  power  is 
to  be  by  will  or  deed,  or  either,  depends  upon  the  words  of  the 
instrument.  If  the  trustee  is  "  to  will  it,"  the  power  must  be 
executed  by  will ;  *  and  so  if  "  afterwards  to  leave  it,"  i.e.  after 
the  life-estate,  but  after  the  death  of  a  tenant  for  life,  then  "  to  be 
at  the  disposal  of  A."  does  not  imply  a  will.°  If  a  power  is  to  be 
executed  by  a  will,  all  the  solemnities  of  making  a  will,  accord- 
ing to  the  statutes  in  force,  must  be  observed,  in  order  that  the 
will  may  be  duly  probated  ;  ^  but  if  the  creator  of  the  power  point 
out  all  the  formalities  to  be  used  in  executing  the  will,  a  will, 
executed  according  to  the  formalities  prescribed  in  the  power, 
will  be  a  valid  execution  of  the  power,  althougli  the  instrument 
is  invalid  as  a  will.''  The  general  rule  is  rigidly  adhered  to, 
that  powers  can  be  executed  only  in  the  mode,  and  at  the  time, 

'  Ward  V.  Lenthal,  1  Sid.  143. 

^  Woodward  v.  Halsey,  1  Sugd.  on  Powers,  255  (3d  Am.  ed.)  ;  Earl  of 
Darlington  v.  Putney,  Cowp.  260  ;  Doe  v.  Cavan,  5  T.  R.  567;  6  Bro.  P.  C. 
Tanil.  175;  Bushell  v.  Bushell,  1  Rep.  t.  Redesdale,  96,  4  Taunt.  297; 
Follett  V.  Follett,  2  P.  Wm.  469  ;  Alley  v.  Lawrence,  12  Gray,  373  ;  Moore 
V.  Demond,  5  R.  I.  130. 

'  Whaley  v.  Drummond,  1  Sugd.  on  Pow.  257  (3d  Am.  ed.)  ;  Reid  v. 
Shergold,  10  Ves.  370 ;  Anderson  v.  Dawson,  15  Ves.  532.  But  see  Hentley 
V.  Tliomas,  15  Ves.  596. 

*  Paul  V.  Heweston,  2  My.  &  K.  434. 

*  Anon.  3  Lev.  71;  Thomlinson  v.  Dighton,  1  Com.  194;  1  P.  Wras. 
149;  ExpaHe^V'l\\{sLms,  1  Jac.  &  W.  89;  Doe  v.  Thorley,  10  East,  488; 
Walsh  V.  Wallinger,  2  Rus.  &  My.  78,  Tainl.  425 ;  Brown  v.  Chambers, 

1  Hayes,  597;  Archibald  t\  Wright,  9  Sim.  161. 

«  1  Sugd.  Pow.  257. 

">  Eyre  v.  Fitton,  1  Sugd.  Pow.  1.55 ;  Day  v.  Thwaites,  3  Ch.  Ca.  69,  92, 

2  Vcrn.  80;  Wilkes  v.  Holmes,  9  Mod.  485,  10  Ves.  237,  268;  Goo.liiill  v. 
Brigham,  1  Bos.  &  Piil.  198;  Longford  y.  Eyre,  1  P.  Wm.  740;  Habergham 
V.  Vincent,  2  Ves.  Jr.  204. 


40  EXECUTION   OF   POWERS.  [CHAP.  XVI. 

and  upon  the  conditions  prescribed  in  the  instrument  creating 
the  power  or  trust,^ 

§  511  c.  The  donee  of  a  power  may  execute  it  without  ex- 
pressly referring  to  it,  or  taking  any  notice  of  it,  provided  that 
it  is  apparent  from  the  whole  instrument  that  it  was  intended 
as  an  execution  of  the  power.  The  execution  of  the  power, 
however,  must  show  that  it  was  intended  to  be  such  execution  ; 
for  if  it  is  uncertain  whether  the  act  was  intended  to  be  an 
execution  of  the  power,  it  will  not  be  construed  as  an  execu- 
tion. The  intention  to  execute  a  power  will  sufficiently  appear, — 
(1)  When  there  is  some  reference  to  the  power  in  the  instrument 
of  execution  ;  (2)  where  there  is  a  reference  to  the  property 
which  is  the  subject-matter  on  which  execution  of  the  power 
is  to  operate,  and  (3)  where  the  instrument  of  execution  would 
have  no  operation,  but  would  be  utterly  insensible  and  absurd, 
if  it  was  not  the  execution  of  a  power.  Thus,  if  a  donee  of  a 
power  to  sell  land  have  also  an  interest  in  his  own  right  in  the 
same  land,  his  deed  of  the  land,  making  no  reference  to  the 
power,  will  convey  only  his  own  interest ;  for  there  ig  a  subject- 
matter  for  the  deed  to  operate  upon,  excluding  the  power,  and, 
therefore,  as  it  does  not  conclusively  appear  that  the  deed  was 
intended  to  be  an  execution  of  the  power  as  well  as  a  convey- 
ance of  the  grantor's  interest  in  the  land,  it  will  be  held  not  to 
be  an  execution  of  the  power :  but  if  the  grantor  has  no  inter- 
est in  the  land,  his  deed  will  be  insensible  and  a  mere  absurdity, 
if  not  intended  as  an  execution  of  the  power  ;  therefore,  it  will 
be  held  to  be  an  execution  of  the  power,  if  it  refers  to  the  sub- 
ject-matter of  the  power,  or  describes  the  land  over  which  his 
power  extends.2    It  will  be  seen  that  this  last  conclusion  is  a 

'  See  ante,  §  254,  and  -post,  §§  254,  778,  779,  783-785. 

2  Bingham's  App.  64  Penn.  St.  349 ;  Drusadow  v.  Wilde,  63  Penn.  St. 
<172  ;  Allison  v.  Kurtz,  2  Watts,  185  ;  Coryell  v.  Dunton,  7  Penn.  St.  530; 
Keefer  v.  Schwartz,  11  Wright,  503 ;  Wetherell  v.  Wetherell,  6  Harris, 
265 ;  Thompson  v.  Garwood,  3  Whart.  287 ;  Meconkey's  App.  1  Harris, 


§§  511  S,  511  C-l         WHETHER   BY   REFERENCE   TO,  ETC.  41 

presumption  of  law ;  this  presumption  may  be  more  or  less 
strong,  according  to  all  the  circumstances  of  the  case  and  the 
condition  of  the  property.  If  all  the  words  of  a  deed  or  will 
can  have  an  effect  given  to  them,  and  an  operation  upon  prop- 
erty or  rights,  without  being  taken  as  the  execution  of  a  power, 
they  will  not  be  an  execution  of  such  power.^  If  a  man  has 
several  powers,  and  refers  to  some  and  not  to  others,  the  exe- 
cution will  exclude  those  not  referred  to.^  From  these  proposi- 
tions it  may  be  seen  why  a  conveyance  of  specific  property,  or  a 
specific  devise  of  property,  will  generally  operate  as  the  execu- 
tion of  a  power,  if  the  grantor  or  testator  has  no  other  interest 
in  the  property  but  the  power,  although  he  makes  no  refer- 
rence  to  the  power  in  his  deed  or  will.*^  On  the  other  hand,  the 
student  will  understand  why  it  was  so  long  held  that  a  gen- 
eral conveyance  or  assignment  of  all  a  grantor's  property  which 
named  no  particular  property,  or  a  general  devise  of  all  a 
testator's  property,  without  referring  to  any  particular  property, 

259 ;  Commonwealth  v.  Duffield,  2  Jones,  280 ;  Heffevman  v.  Addams, 
7  Watts,  IIG;  Cler's  Case,  6  Rep.  17  b.,  Mo.  476,  577  ;  Cro.  Eliz.  877  ;  Cro. 
Jac.  31;  Brooke  v.  Turner,  2  Bing,  N.  C.  422;  Wjkbam  v.  Wykham,  18 
Ves.  419;  Strope's  Case,  10  Rep.  143  b;  Frampton  v.  Frampton,  6  Rep. 
144  b;  Snape  v.  Turton,  Cro.  Car.  472;  Deg  v.  Dog,  2  P.  Wms.  413,  Sel. 
Ca.  44;  Fitzgerald  v.  Fauconberge,  Fitz.  107;  Roscommon  v.  Fowke, 
4  Bro.  P.  C.  523;  George  v.  Lansley,  8  East,  13;  Guy  v.  Dormer,  Raym. 
295,  3  Ch.  Ca.  91;  Udal  v.  Udal,  Al.  81;  Att'y-Gen.  v.  Brackenbury, 
1  Hurl.  &  Colt.  782 ;  Baton  v.  Jacks,  6  Rob.  (N.  Y.)  166 ;  Collins  v.  Will, 
40  Mo.  28;  Hamilton  v.  Crosby,  32  Conn.  342;  White  v.  Hicks,  43  Barb. 
64,  33  N.  Y.  383;  Davis  v.  Vincent,  1  Houst.  416;  Parcher  v.  Daniel,  12 
Rich.  Eq.  349;  Myers  v.  INIcBride,  13  Rich.  L.  178;  Pease  v.  Pilot  Knob 
Co.  49  Mo.  124;  Blagge  v.  Miles,  1  Story,  426;  Amory  v.  Meredith,  7 
Allen,  397;  Owen  v.  Switzer,  5  Mo.  322;  Clark  v.  Hornthal,  47  Miss. 
434. 

1  Bingham's  Appeal,  64  Penn.  St.  350. 

^  Att'y-Gen.  v.  Vigor,  8  Ves.  256;  Maundrell  v.  IMaundrell,  10  Ves. 
246;  Trollope  v.  Linton,  1  Sim.  &  St.  477;  Baili'V  v.  Lloyd,  5  Russ.  330; 
Pidgoly  V.  Pidgely,  1  Coll.  255  ;  Hougliam  v.  Sandys,  2  Sim.  95  ;  Roach  v. 
Haynes,  6  Ves.  153,  8  Ves.  584;  Monk  v.  Mawdesly,  1  Sim.  286;  Lawson 
V.  Lawson,  3  Bro.  Ch.  272. 

=•  See  1  Sugd.  Pow.  356,  383  (3d  Amer.  ed.). 


42  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

and  without  referring  to  any  power  to  be  executed,  did  not 
operate  to  execute  a  power  the  grantor  or  testator  might 
have.^  In  the  one  case,  a  specific  reference  to  the  property- 
indicates  an  intention  to  execute  a  power,  if  the  act  can  have 
no  other  sense,  as  if  the  donee  of  the  power  has  no  other 
interest  in  the  property  ;  but  a  general  devise  or  conveyance, 
which  neither  refers  to  specific  property  nor  to  the  power  to  be 
executed,  indicates  no  intention  to  execute  a  power.  It  will 
be  understood  that  there  is  a  wide  distinction  between  execut- 
ing a  special  or  discretionary  power,  and  a  simple  devise  of  the 
trust  estate  ;  for  it  will  be  remembered  that  a  trust  estate  passes 
under  general  words  in  a  will  to  the  devisee,  but  the  devisee 
takes  the  trust  estate  subject  to  the  same  trusts  under  which 
the  original  trustee  held  tliem.^  It  will  also  be  remembered, 
that  there  is  a  difference  between  a  trustee's  executing  a 
power  of  appointment,  or  otherwise,  in  his  last  will,  and  a  cestui 
que  trust  devising  his  beneficial  interest  in  a  trust  estate.  It 
has  been  considerably  discussed,  whether  general  words  in  the 
will  of  a  cestui  que  trust  devises  all  his  interest  in  a  trust  fund, 
as  well  as  all  the  estate  to  which  he  may  have  the  legal  title.  It 
is  established  by  statute  in  England,  that  general  words  in  a 
will  shall  convey  the  cestui  que  trusts  legal  and  beneficial 
estates,  and  this  rule  is  followed  in  Massachusetts.^ 

1  1  Sugd.  Pow.  383  et  seq.  (3d  Am.  ed.);  Doe  v.  Roake,  2  Bing. 
497  ;  Blagge  v.  Miles,  1  Story,  426,  4  Kent,  336;  Jones  v.  Tucker,  2  iMer. 
533 ;  Doe  v.  Vincent,  1  Houst.  416,  427 ;  Hughes  v.  Turner,  3  My.  &  K. 
688.  But  the  English  Statutes  7  Will.  IV.  &  1  Vic.  c.  26,  §  27,  have 
altered  the  rule ;  and  at  the  present  day  a  general  devise  of  real  or  per- 
sonal estate  operates  as  an  execution  of  all  the  power  that  a  testator  may 
have  over  such  property,  unless  it  appears  to  have  been  the  intention  not  to 
execute  such  power.  See  CoUard  v.  Sampson,  16  Beav.  543  ;  M.  De  G.,  M. 
&  G.  224;  Lake  v.  Currie,  2  De  G.,  M.  &  G.  536;  West  v.  Ray,  1  Kay,  385; 
Orange  v.  Pickford,  4  Drew.  363;  Wilson  v.  Eden,  16  Beav.  153;  Enniss  v. 
Smith,  2  De  G.  &  Sm.  722;  Wisden  v.  Wisden,  2  Sm.  &  Gif  396;  Blagge 
V.  Miles,  1  Story,  426.  The  court  in  Massachusetts  has  adopted  the  rule  of 
the  English  Statute.     See  Amory  v.  Meredith,  7  Allen,  400. 

*  See  ante,  §§  335-345. 

'  Amory  v.  Meredith,  7  Allen,  397. 


§§  511  C-513.]       POWER   OP    CONSENT   TO    MARRIAGE.  43 

§  512.  A  personal  power  is  sometimes  given  to  trustees  to 
consent  to  or  approve  the  marriage  of  the  cestui  que  trust; 
and  the  enjoyment  of  the  bounty  of  the  testator  by  the  benefi- 
ciaries is  sometimes  made  to  depend  upon  the  exercise  of  this 
power  by  trustees.  These  powers,  if  exercised  in  restraint  of 
marriage,  are  not  favored  in  equity.^  Therefore,  if  an  interest 
is  vested  in  a  beneficiary,  subject  to  be  divested  in  case  the 
beneficiary  marries  without  the  consent  or  approbation  of  the 
trustee,  and  there  is  no  gift  over  to  take  effect  upon  the  mar- 
riage without  such  consent,  the  power  or  condition  will  be 
treated  as  void,  and  will  not  be  enforced.^  But  this  rule  will 
not  apply  to  a  charge  on  real  estate.^  If  the  condition  is  sub- 
sequent, and  the  interest  is  given  over  on  the  failure  of  the 
donee  to  comply  with  it,  the  court  will  enforce  the  gift  over  if 
the  first  donee  marry  without  the  consent  of  the  trustees.*  It 
is  said  to  be  doubtful,  whether  a  general  gift  of  the  residue 
will  be  a  sufficient  gift  over  to  give  validity  to  such  power  ;^ 
but  if  the  direction  is,  that  the  particular  gift  shall  fall  into 
the  residue,  in  case  the  donee  marries  without  the  consent  of 
the  trustees,  it  is  a  good  gift  over.*^ 

§  513.  If  the  property  once  vests  absolutely  in  the  donee, 
and  there  is  a  general  and  unlimited  condition  that  he  shall 

'  Stackpole  v.  Beaumont,  3  Ves.  96;  Long  v.  Dennis,  4  Burr.  2052; 
Daley  v.  Di'sbouvierie,  2  Atk.  261. 

"  Semphill  V.  Ilayley,  Pr.  Cli.  562;  Garrett  v.  Pretty,  2  Vern.  293;  3 
Mer.  120;  Jervoise  v.  Duke,  1  Vern.  20;  Harvey  v.  Aston,  1  Atk.  378; 
Wheeler  v.  Bingham,  3  Atk.  364;  Lloyd  v.  Branton,  3  Mer.  117;  1  Rop. 
Leg.  715;  W.  v.  B.  11  Beav.  621;  Pool  v.  Bate,  11  Hare,  33;  Marples  v. 
Bainbridge,  1  Mad.  590 ;  Mcllvaine  v.  Gether,  3  Whart.  575 ;  Hooper  r. 
Dundas,  10  Barr,  75;  Maddox  v.  Maddox,  11  Grat.  804. 

'  Ibid. ;  Reynish  v.  Martin,  3  Atk.  333  ;  Borkoly  v.  Ryder,  2  Ves.  535. 

*  Ibid. ;  Stratton  v.  Grimes,  2  Vern.  357  ;  Dashwood  v.  Bulkeley,  10  Ves. 
230;  Scott  V.  Tyler,  2  Bro.  Ch.  431;  2  Lead.  Ca.  Eq.  105,  and  notes. 

*  Harvey  v.  Aston,  1  Atk.  375;  contra,  Wheeler  v.  Bingham,  3  Atk. 
864;  Lloyd  v.  Branton,  3  Mer.  118 ;   Scott  v.  Tyler,  2  Lead.  Ca.  Eq.  396. 

6  Wheeler  v.  Bingham,  3  Atk.  368;  Lloyd  i'.  Branton,  3  Mer.  118. 


44  SPECIAL   POWERS    OP    TRUSTEES.  [CHAP.  XVI. 

not  marry  without  the  consent  of  the  trustees,  the  necessity  of 
the  consent  ceases,  as  soon  as  the  interest  vests ;  as  where  a 
legacy  is  given  to  a  child  at  twenty-one,  provided,  if  he  marry 
without  the  consent  of  the  trustees,  he  should  forfeit  it.  The 
legacy  vests  at  twenty-one,  and  if  he  marry  afterwards  without 
consent,  the  condition,  being  subsequent,  is  gone,  and  there  is 
no  forfeiture;^  and  where  a  child  marries  in  tlie  testator's  life- 
time, with  his  consent,  but  after  the  date  of  the  will,  such  con- 
ditions, as  to  consent  of  trustees,  are  of  no  effect ;  and  they  do 
not  apply  to  a  second  marriage.^ 

§  514.  Where  power  is  given  to  a  trustee  to  consent  to  a 
marriage,  as  a  condition  precedent  to  the  gift's  taking  effect, 
nothing  will  vest  in  the  donee  until  the  condition  is  complied 
with  ;  as  where  there  is  a  gift  in  trust  for  a  party  upon  his 
marriage^  OY  upon  his  marriage  with  the  jjroper  consent  of  the 
trustee,  the  gift  will  not  vest  in  the  beneficiary  until  his  mar- 
riage with  the  consent  of  the  trustee.^     Under  such  form  of 

*  Pullen  V.  Ready,  2  Atk.  587;  Desbody  r.  Boyville,  2  P.  Wms.  .547; 
Knapp  V.  Noyes,  Amb.  662;  Osborn  v.  Brown,  5  Ves.  527;  Stackpole 
V.  Beaumont,  3  Ves.  89;  Malcolm  v.  O'Callaghan,  2  Mad.  354;  Lloyd  w. 
Branton,  3  Mer.  108;  Graydon  v.  Hicks,  2  Atk.  18;  Garrett  v.  Pretty, 
2  Vern.  293  ;  3  Mer.  120  n. 

'  Clarke  v.  Berkely,  2  Vern.  720  ;  Crommelin  v.  Crommelln,  3  Ves.  227 ; 
Parnell  v.  Lyon,  1  V.  &  B.  479;  Wheeler  v.  Warner,  IS.  &  S.  304;  Smith 
V.  Cowdery,  2  S.  &  S.  358;  Coventry  v.  Higgins,  8  Jur.  182. 

^  Reeves  v.  Heme,  5  Vin.  Abr,  343,  pi.  41;  Reynish  v.  Martin,  3  Atk. 
330;  Frye  v.  Porter,  1  Ch.  Ca.  138;  1  Mod.  300;  Bertie  v.  Falkland,  3  Ch. 
Ca.  129;  Holmes  w.  Lysight,  2  Bro.  P.  C.  261;  Hemmings  v.  Miinckley, 

1  Bro.  Ch.  303  ;  Scott  v.  Tyler,  2  Bro.  Ch.  489  ;  2  Lead.  Ca.  Eq.  105,  notes  ; 

2  Dick.  712;  Knight  v.  Cameron,  14  Ves.  389;  Creagh  v.  Wilson,  2  Vern. 
572;  Gillett  v.  Wray,  1  P.  Wms.  284;  Harvey  v.  Aston,  1  Atk.  375;  New- 
ton V.  Marsden,  2  John.  &  H.  356;  Hotz's  Est.  38  Penn.  St.  422;  Cornell 
V.  Lovett,  35  Penn.  St.  100;  Taylor  v.  Mason,  9  Wheat.  350;  Collier  v. 
Slaughter,  2  Ala.  263;  Stratton  v.  Grymes,  2  Vern.  357  ;  Barton  v.  Barton, 
2  Vern.  308;  Hawkins  v.  Skeggs,  10  Humph.  31;  Bennett  v.  Robinson, 
10  Watts,  348;  Commonwealth  v.  Stauffer,  10  Barr,  350;  McCuUough's 
App.  2  Jones,  197;  Phillips  v.  Medbury,  7  Conn.  568. 


§§  513-515.]       POWER   OF    CONSENT   TO    MARRIAGE.  45 

gift,  it  is  immaterial  whether  there  is  a  gift  over  or  not.^  The 
rule  will  apply,  whether  the  consent  to  the  marriage  is  required 
until  a  certain  age,  or  during  the  whole  life.^  Where  there 
was  a  gift  in  trust  to  a  party,  if  he  should  marry  with  the  con- 
sent of  the  trustees,  and  over,  if  he  should  marry  against  their 
consent,  it  was  held,  that  against  was  equivalent  to  zvithoiit, 
and  that  the  gift  went  over,  although  it  did  not  appear  that 
the  trustees  opposed  the  marriage.^  The  trustees'  powers  are 
exhausted  by  consent  to  one  marriage ;  if,  therefore,  they  con- 
sent to  one  marriage,  the  beneficiary  may  marry  a  second  time 
without  their  consent.*  But  the  rule  in  relation  to  a  first  mar- 
riage without  consent,  and  a  second  marriage  with  consent,  is 
uncertain.^ 

§  515.  A  general  restraint  of  marriage,  with  or  without  the 
consent  of  trustees,  or  with  any  person,  is  illegal  and  void,  as 
contrary  to  the  policy  of  the  law.  Therefore,  a  gift,  in  trust, 
upon  the  condition  that  the  beneficiary  shall  not  marry  at  all, 
will  vest  in  the  donee,  and  the  condition  is  void.^  So  all  con- 
ditions, leading  to  a  probable  prohibition  of  marriage,  are 
void.'^  But  a  condition,  restraining  marriage  under  the  age  of 
twenty-one,  or  before   a   reasonable  age   without  consent,  is 

'  Ibid. ;  Clarke  v.  Parker,  19  Vcs.  8;  Malcolm  v.  O'Callaghan,  2  Mad. 
319 ;  Long  v.  Ritketts,  2  S.  &  S.  179  ;  Stackpole  v.  Beaumont,  3  Ves.  89 ; 
1  Rop.  Log.  658. 

^  Ibid.  ;  Lloyd  v.  Branton,  3  Mer.  108. 

8  Long  V.  Ricketts,  2  S.  «&  S.  179;  and  see  Harvey  v.  Aston,  1  Alk.  375; 
Pollock  V.  Croft,  1  Mer.  184. 

■*  Iliitcheson  v.  Hammond,  3  Bro.  Ch.  128  ;  Crommelin  v.  Crommelin,  3 
Ves.  227 ;  Low  v.  Manners,  5  B.  &  Aid.  967  ;  1  Rop.  Leg.  709. 

*  Malcolm  v.  O'Callaglian,  2  Mad.  349. 

«  Waters  v.  Tazewell,  9  Ind.  291;  Maddox  v.  Maddox,  11  Grat.  804; 
Keily  V.  Monck,  3  RIdgw.  P.  C.  205,  244,  249,  261;  Harvey  v.  Aston, 
Comyn,  726  ;  1  Atk.  361 ;  1  Eq.  Ca.  Ab.  1 10,  pi.  2,  n.  (a)  ;  Rishton  v.  Cobb, 
9  Sim.  615;  Morley  v.  Rennoldson,  2  Hare,  570;  Connelly  i'.  Connelly,  7 
Moore,  P.  C.  438. 

7  Ibid.  ;  Long  v.  Dennis,  4  Burr.  2052. 


46  SPECIAL   POWERS   OP   TRUSTEES.  [CHAP.  XVI. 

valid. 1  So  conditions  that  restrain  marriage  with  a  particular 
person,  or  with  natives  of  a  particular  country,  or  of  a  partic- 
ular religion,  or  conditions  that  prescribe  the  ceremonies  of 
the  marriage,  are  valid,  and  may  be  enforced  in  relation  to  the 
property.2 

§  516.  Where  there  is  a  limitation  of  property  to  a  person 
until  marriage,  and,  upon  marriage  over  to  some  other  person, 
or  during  widowhood,  or  while  single,  or  where  there  is  an 
annuity,  payable  to  a  person  until  such  time,  or  during  such 
time,  and  then  to  cease,  the  limitation  is  valid.  Such  a  gift 
is  upon  no  condition  at  all,  but  is  a  clear  limitation,  that 
marks  the  duration  and  continuance  of  the  interest.^  But 
where  a  testator  devised  lands  to  trustees  in  trust  for  B.  for 
life,  provided  she  does  not  marry,  and,  after  her  decease  or 
marriage,  over  to  other  persons,  and  the  testator  afterwards 
married  B.  himself,  and  republished  his  will,  with  the  same 
proviso  in  it,  it  was  held  that  B.  was  entitled  to  the  property 
notwithstanding  her  marriage.'* 

§  517.  Where  such  powers  of  consent  are  given  to  trustees, 
the  marriage  of  the  cestui  que  trust,  during  the  testator's  life- 

>  Sutton  V.  Jewke,  2  Ch.  R.  9;  Creagh  o.  Wilson,  2  Yern.  573;  Ashton 
V.  Ashton,  Pr.  Ch.  226;  Chauncy  v.  Graydon,  2  Atk.  616;  Hemmings  v. 
Munckley,  1  Bro.  Ch.  304;  Dashwood  v.  Bulkeley,  10  Ves.  230;  Stackpole 
V.  Beaumont,  3  Ves.  96;  Pearce  v.  Loman,  3  Ves.  139;  Yonge  v.  Furse, 
3  Jur.  (n.  s.)  603. 

2  Jervois  v.  Duke,  1  Vern.  19 ;  Randall  v.  Payne,  1  Bro.  Ch.  55 ;  Perrin 
V.  Lyon,  9  East,  170;  Duggan  v.  Kelley,  10  Ir.  Eq.  295;  1  Eq.  Ca.  Ab.  110, 
pi.  2,  n.  (a)  ;  Haughton  v.  Haughton,  1  Moll.  611. 

'  Jordan  v.  Holkara,  Amb.  209;  Barton  v.  Barton,  2  Vern.  308;  Scott 
V.  Tyler,  2  Lead.  Ca.  Eq.  396;  Lowe  v.  Peers,  Wilm.  369 ;  Bird  v.  Hunsdon, 

2  Swans.  342 ;  Marples  v.  Bainbridge,  1  Mad.  590  ;  Webb  v.  Grace,  2  Phil. 
701,  reversing  15  Sim.  384;  Richards  v.  Baker,  2  Atk.  321;  Sheffield  v. 
Orrery,  3  Atk.  282 ;  Gordon  v.  Adolphus,  3  Bro.  P.  C.  306  ;  Heath  v.  Lewis, 

3  De  G.,  M.  &  G.  954.  The  early  case  of  Parsons  v.  Winslow,  6  Mass.  169,  is 
not  in  accordance  with  the  authorities,  nor  can  it  be  sustained  on  principle. 

*  Cooper  V.  Cooper,  6  Ir.  Ch.  217;  Corkers  v.  Minons,  1  Ir.  Jur.  316; 
West  V.  Kerr,  6  Ir.  Jur.  141. 


§§  515-517.]       POWER    OF    CONSENT   TO    MARRIAGE.  47 

time  with  his  consent  or  subsequent  approval,  renders  them 
inapplicable,  and  they  cannot  be  executed. ^  The  assent  of  the 
trustees,  when  necessary,  may  be  implied,  as  where  they  allow 
a  courtship  and  marriage  to  take  place,  and  make  no  objection.^ 
In  this  case  no  particular  form  of  consent  was  i)rescribed. 
Even  where  a  written  consent  was  prescribed,  and  the  trustees 
negotiated  the  settlement  and  the  marriage,  it  was  held 
sufficient :  ^  they  should  be  estopped  to  deny  their  consent  to  a 
marriage  of  their  own  procurement.  There  need  be  no  consent 
to  a  particular  marriage,  if  the  cestui  que  trust  has  a  general 
consent  or  license  to  marry  whom  she  chooses.*  If  the  consent 
is  required  to  be  in  writing,  very  loose  and  general  expressions 
of  consent  in  letters,  if  acted  upon,  will  be  construed  into 
assent.°  If  the  consent  is  required  to  be  in  writing,  any  fraud 
or  procurement,  on  the  part  of  the  trustees,  will  estop  them 
from  insisting  upon  the  forfeiture  ;  ^  but  if  there  is  no  collusive 
conduct,  and  consent  is  required  to  be  in  writing,  an  implied 
or  verbal  consent  cannot  satisfy  the  condition."  A  deed  is  not 
necessary,  unless  specially  required  by  the  will.^  The  consent 
must  be  given  previously  to  the  marriage,  and  the  approbation 
of  the  trustees  afterwards  is  immaterial,  because  no  subsequent 
approbation  could  be  a  performance  of  the  condition,  or  avoid 
a  forfeiture  for  a  breach  of  it.^     If  the  time  is  stated  for  the 

'  Clarke  v.  Berkely,  2  Vern.  720;  Coffin  v.  Cooper,  cited  1  Ves.  &  B. 
481 ;  Parnell  v.  Lyon,  1  V.  &  B.  479;  Wheeler  v.  Warner,  1  S.  &  S.  374; 
Coventry  v.  Iliggins,  14  Sim.  30 ;  Crommelin  v.  Crommelin,  3  Yes.  227 ; 
Smith  V.  Cowdery,  2  S.  &  S.  358. 

^  Mesgrett  u.Mesgrett,  2Vern.580;  Clarke  u.  Parker,  19  Ves.  12;  Harvey 
V.  Aston,  1  Atk.  375 ;  O'Callaghan  v.  Cooper,  5  Ves.  126. 

^  Strange  v.  Smith,  Amb.  263 ;   Worthington  v.  Evans,  1  S.  &  S.  165. 

*  Mercer  v.  Hall,  4  Bro.  Ch.  328;  Pollock  v.  Croft,  1  Mer.  181. 

*  Daley  t\  Desbouverie,  2  Atk.  261 ;  D'Aguilar  v.  Drinkwater,  2  V.  &  B. 
225;  Merry  v.  Ryves,  1  Eden,  1;  Worthington  v.  Evans,  1  S.  «fe  S.  165; 
Le  Jeune  v.  Budd,  6  Sim.  441. 

'  Strange  v.  Smith,  Amb.  263;  Clarke  v.  Parker,  19  Ves.  18;  Farmer 
V.  Compton.  1  Ch.  R.  1. 

7  D'Aguilar  v.  Drinkwater,  2  V.  &  B.  225;  Clarke  v.  Parker,  19  Ves.  12. 

*  Worthington  v.  Evans,  2  S.  &  S.  165. 

»  Reynish  v.  Martin,  3  Atk.  331 ;  Clarke  v.  Parker,  19  Ves.  21 ;  Berkley 


48  SPECIAL   POWERS   OF   TRUSTEES.  [CHAP.  XVI. 

exercise  of  the  power,  the  consent  cannot  be  three  years  before 
the  time  named. ^  If,  however,  the  trustees  gave  their  consent 
to  the  marriage  at  the  proper  time,  but  were  prevented  by 
accident  from  executing  the  formal  writings  until  after  the 
solemnization  of  it,  it  was  held  to  be  a  compliance  with  the 
condition,  as  courts  of  equity  may  at  all  times  relieve  from 
accidents  and  mistakes.^  If  the  trustees  have  once  given  their 
full  consent  to  the  marriage,  with  the  knowledge  of  all  the 
facts,  they  cannot  withdraw  it ;  for  they  have  allowed  the 
affections  and  feelings  of  the  parties  to  become  entangled,  and 
it  would  be  in  the  nature  of  a  fraud  to  withdraw  their  consent.^ 
But  if  any  new  facts  should  come  to  the  knowledge  of  tlie  trus- 
tees, which  would  render  the  marriage  an  improper  one,  they 
may  withdraw  their  consent,  and  they  ought  to  do  so.^ 

§  518.  The  consent  of  the  trustees  may  be  given  condition- 
ally, if  the  condition  is  not  unreasonable.  Thus  an  assent, 
if  a  proper  settlement  is  made,  or  if  the  cotrustees  consent,  is 
conditional ;  ^  and  if  the  parties  fail  or  refuse  to  perform  the 
condition,  the  consent  may  be  withdrawn  ;^  but  if,  in  pursuance 
of  the  condition,  a  settlement  is  made  after  marriage,  it  wdll 
save  the  forfeiture."     All  the  trustees  who  accept  the  trust, 

V.  Ryder,  2  Ves.  532;  Long  v.  Ricketts,  2  S.  &  S.  179;  Malcolm  v.  O'Cal- 
laghan,  2  Mad.  349 ;  Hammings  v.  Munckley,  1  Bro.  Ch.  304 ;  Frye  v. 
Porter,  1  Ch.  Ca.  138;  1  Mod.  300.  In  Burleton  v.  Humphrey,  Amb.  256, 
Lord  Hardwicke  held  a  different  doctrine;  but  it  has  not  been  acted  upon, 
and  is  not  the  law. 

1  Weller  v.  Ker,  L.  R.  1  H.  L.  Scot.  11. 

2  Worthington  v.  Evans,  2  S.  «&  S.  172 ;  O'Callaghan  v.  Cooper,  5  Ves. 
117. 

^  Le  Jeune  v.  Budd,  6  Sim.  441;  Farmer  v.  Compton,  1  Ch.  R.  1; 
Strange  v.  Smith,  Amb.  263;  Merry  t?.  Ryves,  1  Edm.  1;  Dashwood  v. 
Bulkeley,  10  Ves.  242. 

*  DWguilar  v.  Drinkwater,  2  Ves.  &  B.  234;  1  Rop.  Leg.  699. 

^  O'Callaghan  v.  Cooper,  5  Ves.  517;  Dashwood  v.  Bulkeley,  10  Ves. 
230;  D'Aguilar  v.  Drinkwater,  2  V.  &  B.  235. 

«  Dashwood  v.  Bulkeley,  10  Ves.  230. 

'  O'Callaghan  v.  Cooper,  5  Ves.  117;  10  Ves.  230. 


§§  517,  518.]       POWER   OF   CONSENT   TO    MARRIAGE,  49 

must  consent,!  unless  the  dissenting  trustee  is  influenced  by 
selfish  and  improper  motives ;  ^  for,  if  the  testator  has  named 
the  parties  who  are  to  assent,  although  he  has  used  words  to 
indicate  that  he  attached  no  particular  importance  to  the  assent 
of  all,  yet,  the  court  cannot  change  the  condition,  and  deprive 
those  of  their  interest,  to  whom  there  is  an  express  devise 
over.'^  A  trustee  may,  however,  authorize  his  cotrustee  to  con- 
sent for  him,  for  that  would  be  his  own  consent.*  In  general, 
the  power  to  assent  is  given  to  the  executors  or  trustees,  in 
that  character  and  not  jyersonally,  and  those  who  renounce  the 
trust  have  no  power  ; '"  yet  the  power  may  be  conferred  upon 
an  executor  or  trustee  jjersonaUi/,  so  that  his  assent  may  be 
required,  although  he  renounce  the  trust.^  And  a  power  may 
be  so  given  to  executors  to  sell  lands  that  they  may  execute 
the  power  of  selling  the  lands  although  they  renounce  the 
executorship.'  If  the  power  becomes  impossible  by  the  death 
of  one  or  more  of  the  trustees,  it  will  be  dispensed  with  so  far 
as  it  is  impossible  to  execute  it  literally  ;  ^  and  if  all  the  trus- 
tees die,  the  power  is  absolutely  gone.  So,  if  the  condition  is 
subsequent,  and  the  consent  of  the  executors  or  trustees  in  the 
plural  number  is  required,  and  one  dies,  the  condition  is  gone  ;  ^ 
but  if  the  death  of  the  original  trustee  is  provided  for  by  the 
appointment  of  a  new  one,  and  the  power  extends  to  him,  then 

'  Clarke  v.  Parker,  19  Ves.  12.  The  dictum  in  Harvey  v.  Aston,  1  Atk. 
375,  has  not  been  followed. 

-  Peyton  v.  Bury,  2  P.  Wms.  G2G :  Mesgrett  v.  Mesgrett,  2  Vern.  580; 
Clarke  v.  Parker,  19  Ves.  12. 

3  Clarke  v.  Parker,  19  Ves.  15. 

*  Daley  v.  Desbouverie,  2  Atk.  2G1 ;  Clarke  v.  Parker,  19  Ves.  12; 
D'Aguilar  v.  Drinkwater,  2  V.  &  B.  225,  235,  236. 

'  Worthington  v.  Evans,  2  S.  &  S.  165;  19  Ves.  16. 

^  Graydon  v.  Graydon,  2  Atk.  16,  explained  in  1  Rop.  Leg.  695. 

''  Moody  V.  Fulmer,  3  Grant,  17. 

8  1  Rop.  Leg.  (;91. 

9  Peyton  v.  Bury,  2  P.  Wms.  626;  Jones  v.  Suffolk,  1  Bro.  Ch.  528; 
Graydon  v.  Ilitks,  2  Atk.  16-18 ;  Aislabie  v.  Rice,  3  Mad.  256 ;  8  Taunt. 
459 ;  Grant  v.  Dyer,  2  Dow,  93. 

VOL.  II.  4 


60  SPECIAL   POWERS    OF   TRUSTEES.  [CHAP.  XVI. 

the  consent  of  the  trustees  must  be  had.^  After  a  considerable 
lapse  of  time,  and  no  action  taken  to  disturb  the  possession  of 
the  property,  the  consent  of  the  trustees  will  be  presumed  to 
have  been  given  in  proper  form.^ 

§  519.  The  exercise  of  this  discretionary  power,  of  assenting 
to   the  marriage  of  the  cestui  que  trusty  is  of  so  peculiar  a 
nature  that  courts  of  equity  will  exercise  a  control  over  it,  and 
will  not  suffer  the  power  to  be  abused  ;  they  will  examine  into 
the  conduct  and  motives  of  the  persons  refusing  their  assent, 
and  ascertain  whether  the  refusal  proceeds  from  a  corrupt, 
selfish,   or  improper  motive  ;  and  if  it  does,  the  court  will 
relieve  from  a  forfeiture  incurred  by  a  marriage  without  con- 
sent.^    Lord  Eldon  said,  this  was  a  "  dangerous  power  "  in  the 
court,  and  one  delicate  and  difficult  to  exercise.*     But  there  is 
no  question  that  the  courts  will  exercise  it  in  a  proper  case,  as 
where  the  trustees  refuse  their  assent  from  anger,  pique,  re- 
sentment, or  from  interested  motives,  as  where  some  interest 
in  the  property  would  come  to  them  or  their  families,  in  case 
of  a  marriage  without  their  assent,  or  the  death  of  the  cestui 
que  trust  before  marriage,  or  where  the  trustees  have  them- 
selves  promoted   and   procured  the  marriage.^     So,  where  a 
trustee  refused   to  assent  or  dissent   to  a  proposed  marriage 
of  the  beneficiary,  the  court  sent  the  case  to  a  master  to  in- 
quire, whether  the  marriage  was  a  proper  one,  and  to  receive 
proposals  for  a  settlement.*^ 

*  Clarke  v.  Parker,  19  Ves.  15. 

*  Ee  Bircb,  17  Beav.  358. 
^  1  Rop.  Leg.  697. 

*  Dashwood  v.  Bulkeley,  10  Ves.  245;  Clarke  v.  Parker,  19  Ves.  12. 

*  Mesgrett  v.  Mesgrett,  2  Vern.  580;  10  Ves.  243;  Strange  v.  Smith, 
Amb.  264;  Merry  v.  Ryves,  1  Eden,  6;  Peyton  v.  Bury,  2  P.  Wms.  628; 
Daley  v.  Desbouverie,  2  Atk.  261;  Clarke  v.  Parker,  19  Ves.  19. 

^  Goldsmid  v.  Goldsmid,  19  Ves.  368 ;  Coop.  225. 


;§  518-520.]  TRUSTEES   OF   THE   DRY   LEGAL   TITLE.  51 


CHAPTER   XYII. 

TRUSTEES  OF  THE  DRY  LEGAL  TITLE  ;  TO  PRESERVE  CONTINGENT 
REMAINDERS  ;  OF  TERMS  ATTENDANT  ;  OF  FREEHOLDS  ;  AND  OF 
LEASEHOLDS. 

§§  520,  521.  Powers  and  duties  of  trustees  of  the  dry  legal  title. 
§§  522,  523.  Trustees  of  contingent  remainders. 
§§524,525.  Trustees  of  attendant  terms. 

§  526.  Powers  and  duties  of  trustees  in  possession  of  freeholds. 

§  527.  Must  pay  rates  and  taxes  and  collect  rents. 

§  528.  Trustee's  power  of  lea'^ing. 
§§  529,  530.  Their  power  where  special  directions  are  given  as  to  leasing. 

§  531.  Trustees  of  leaseholds. 
§§  532,  533.  Power  and  duty  to  renew  leases. 

§  534.  Who  is  to  bear  the  expense  of  renewing  leases. 

§  535.  When  trustees  may  not  renew  leases. 

§  536.  Liability  of  trustees  for  covenants  in  leases. 

§  537.  The  fine  for  renewing  a  lease. 

§  538.  The  right  to  renew  leases  a  valuable  right.     Trustees  cannot  renew  in  their  own 
names. 

§  520.  It  is  a  simple  or  dry  trust,  when  property  is  vested 
in  one  person  in  trust  for  another,  and  the  nature  of  the  trust, 
not  being  prescribed  by  the  donor,  is  left  to  the  construction 
of  law.  In  such  case  the  cestui  que  trust  is  entitled  to  the 
actual  possession  and  ciijoyinent  of  the  propci'ty,  and  to  dis- 
pose of  it,  or  to  call  upon  the  trustee  to  execute  such  convey- 
ances of  the  legal  estate  as  he  directs.^  In  short,  the  cestui  que 
trust  has  an  absolute  control  over  the  beneficial  interest, 
together  with  a  right  to  call  for  tlie  legal  title,  and  the  person 
in  whom  the  legal  title  vests  is  a  simple  or  dry  trusteeP'  Set- 
tlors sometimes  convey  estates  in  this  manner  for  an  ulterior 
purpose ;  or  an  active  trust  having  been  accomplished,  the 
legal  title  and  the  beneficial  interest  may  have  fallen  into  this 

^  Lewin  on  Trusts,  18.  ^  Hill  on  Trustees,  316. 


52  TRUSTEES    OF   DRY   LEGAL   TITLES.        [CHAP.  XVIL 

condition.  The  duties  and  powers  of  such  dry  trustees  of  the 
legal  estate  are  few  and  simple.  They  are  usually  said  to  be 
threefold,  and  similar  to  those  of  the  old  feoffees  to  uses : 
(1.)  To  permit  the  cestui  que  trust  to  occupy  and  receive  the 
incomes  and  profits  of  the  estate  ;  (2.)  To  execute  such  con- 
veyances, or  make  such  disposition  of  the  estate  as  the  cestui 
que  trust  may  direct.  In  such  case,  if  the  trustee  has  made 
advances  to  the  cestui  que  trust  upon  the  credit  of  the  land,  the 
decree  to  convey  should  provide  for  the  repayment  of  them.^ 
The  cestui  que  trust  cannot,  however,  call  for  a  conveyance,  if 
such  conveyance  is  inconsistent  with  all  the  agreements  and 
purposes  of  the  trust. ^  If  a  trustee  is  to  convey  to  children, 
he  cannot  be  compelled  to  convey  before  all  the  children  who 
may  take  under  gift  are  born.^  (3.)  To  protect  and  defend 
the  title,  or  to  allow  their  names  to  be  used  for  that  purpose.^ 
At  law  they  are  the  legal  owners  of  the  estate,  and  their  names 
must  be  used  in  all  suits  at  law  affecting  the  legal  title ;  °  but 
in  equity  the  cestui  cjue  trust  is  the  owner,  and  the  trustees 
will  be  restrained  by  injunction  from  using  their  power  over 
the  legal  title  to  the  injury  of  the  cestui  que  trust.^  If  such 
trustees  refuse  from  improper  motives  to  convey  the  dry  legal 
title  when  required  by  a  person  clearly  entitled  to  the  equi- 
table interest,  the  court  will  decree  a  conveyance,  and  impose 
costs  upon  the   trustees  for   their  refusal.''     Even  in  an   ac- 

'  Robles  V.  Clarke,  25  Cab  317. 

*  Thompson  v.  Galloupe,  100  Mass.  435. 
3  Dial  V.  Dial,  21  Tex.  529. 

*  1  Cruise,  Dig.  tit.  12,  c.  4,  §  6. 

*  Goodtitle  v.  Jones,  7  T.  R.  47  ;  Wake  v.  Tinkler,  16  East,  36 ;  Cox  v. 
Walker,  26  Me.  504;  Methodist  Soc.  of  Georgetown  v.  Bennett,  39  Conn. 
293 ;  First  Bap.  Soc.  in  Andover  v.  Hazen,  100  Mass.  322  ;  Beach  v.  Beach, 
14  Vt.  28;  Matthews^ij.  Ward,  10  G.  &  John.  443;  Moore  v.  Burnet,  11 
Ohio,  334 ;  Wright  t'.  Douglass,  3  Barb.  559 ;  Mordecai  v.  Parker,  3  Dev. 
425.  In  Pennsylvania,  however,  the  action  of  ejectment  is  an  equitable 
action,  and  the  cestui  que  tntst  can  maintain  it  for  the  possession  even  against 
the  trustee. 

«  Balls  V.  Strutt,  1  Hare,  146. 

^  Boteller  v.  Allington,  1  Bro.  Ch.  73 ;  Willis  v.  Hiscox,  4  M.  &  Cr.  197 ; 


§§  520,  521.]  THEIR   POWERS    AND   DUTIES.  53 

tion  at  law,  in  the  name  of  the  trustee  for  the  benefit  of  the 
cestui  que  trust,  the  trustee  cannot  release  or  discontinue  the 
action,  without  the  consent  of  the  beneficiary ;  and  if  he  does 
so,  courts  of  law  will  set  aside  the  release  ;  ^  but  where  a 
trustee's  name  is  thus  used  for  the  benefit  of  the  cestui  que 
trust,  he  is  entitled  to  be  indemnified  against  the  costs,  and 
the  cestui  que  trust  may  be  restrained  in  equif^^  from  proceed- 
ing until  he  has  furnished  such  security .^ 

§  521.  In  a  simple  trust  of  this  nature,  the  dry  trustee  has 
no  power  of  managing,  or  disposing  of  the  estate,  even  although 
the  cestui  que  trust  is  an  infant,  married  woman,  lunatic,  or  other 
person  incapable  of  the  management  or  control.  Nor  can  he 
alter  the  nature  of  the  property,  by  changing  real  estate  into 
personal,  or  vice  versa.^  But  there  is  this  qualification  of  the 
rule,  —  if  a  trustee,  having  the  legal  title,  and  being  in  posses- 
sion, makes  a  conveyance  for  a  valuable  consideration  to  a  pur- 
chaser who  has  no  notice  of  the  trust,  the  title  of  the  purchaser 
will  prevail.^  Such  a  transaction,  however,  under  our  registry 
laws  is  almost  impossible,  for  the  recording  of  the  settlement 
or  other  deeds  of  the  property  is  notice  to  all  the  world  of  the 
trust.  So  impersonal  are  the  relations  of  dry  trustees  to  the 
cestui  que  trust,  that  it  is  said  they  may  purchase  the  estate  of 
the  beneficiary .°  It  is  further  to  be  remarked,  that  there  can 
be  but  few  of  these  dry  trusts  ;  for  where  there  is  no  control, 
and  no  duty  to  be  performed  by  the  trustee,  it  becomes  a  sim- 

Jones  V.  Lewis,  1  Cox,  199;  Lyse  v.  Kingdom,  1  Coll.  184;  Penfold  r. 
Boucb,  4  Hare,  -171 ;  Watts  v.  Turner,  1  R.  &  M.  6oi;  Buttanshaw  v.  Martin, 
John.  89 ;  Boskerck  v.  Herrick,  65  Barb.  250. 

1  Manning  v.  Cox,  7  Moore,  617 ;  Barker  v.  Richardson,  1  Yo.  &  Jer. 
362 ;  Chitty,  Contr.  605  ;  McClurg  v.  Wilson,  43  Penn.  St.  439. 

*  Annesley  v.  Simeon,  4  Mad.  390:  Chambersburg  Ins.  Co.  v.  Smith,  11 
Penn.  St.  120. 

^  Furiam  v.  Saunders,  7  Bac.  Abr.  Uses  and  Trusts,  E. ;  Witter  r.  Witter, 
3  P.  Wms.  100. 

*  Millard's  Case,  2  Freem.  43;  Bovey  r.  Smith,  1  Yern.  149. 

*  Parker  r.  White,  11  Yes.  226. 


64  TO  PRESERVE  CONTINGENT  REMAINDERS.       [CHAP.  XYII. 

pie  use,  wliich  the  statute  of  uses  executes  iu  the  cestui  que 
trust;  and  he  thus  unites  both  the  legal  and  beneficial  estate 
in  himself.-^ 

§  522.  Trusts  to  preserve  contingent  remainders  are  less 
frequent  in  this  country  than  in  England  ;  and  they  are  less 
frequent  in  Enoland  since  the  statute  of  8  &  9  Yict.  c.  106, 
which  enacted  that  a  contingent  remainder  should  be  deemed 
capable  of  taking  effect,  notwithstanding  the  determination  by 
forfeiture,  surrender,  or  merger  of  any  preceding  estate  of  free- 
hold, in  the  same  manner  and  in  all  respects  as  if  such  deter- 
mination had  not  happened.  In  consequence  of  this  act,  there 
is  no  necessity  for  any  machinery  to  preserve  contingent  re- 
mainders. Previous  to  the  act,  where  there  were  no  trustees 
to  preserve  them,  they  could  be  destroyed  in  two  ways:  First, 
contingent  remainders  were  extinguishable  by  the  surrender  or 
merger  of  the  particular  estate  in  the  inheritance  ;  as,  if  lauds 
were  limited  to  A.  for  life,  with  remainder  to  his  unborn  chil- 
dren, with  remainder  to  B.,  A.  might  surrender  his  life-estate 
to  B.,  or  B.  might  release  his  remainder  to  A,,  or  both  A.  and 
B.  might  join  in  a  conveyance  of  the  fee  :  and  thus  in  each  case 
the  contingent  remainder  was  squeezed  out,  and  if  children 
were  afterwards  born  to  A.  they  had  no  remedy  in  law  or 
equity.  Second,  they  could  be  extinguished  by  the  tenant  for 
life  with  the  concurrence  of  the  person  who  stood  next  in  the 
series  of  limitations ;  as,  where  the  oldest  son  or  heir  of  the 
tenant  for  life,  being  of  age  and  next  in  the  series,  could  unite 
with  his  father  in  making  a  tenant  to  the  jjrcecipe  to  bar  all 
subsequent  remainders.  Tlius  the  estate  became  the  absolute 
property  of  the  father  and  son,  and  the  subsequent  interests  in 
remainder  were  sacrificed,  except  so  far  as  father  and  son  might 
choose  to  give  them  effect.^ 

§  523.  To  obviate  these  results,  settlements  were  drawn  in 
one  of  two  modes :  First,  the  legal  estate  was  limited  to  the 

'  Peck  V.  Brown,  2  Rob.  N.  Y.  119;  Davis  v.  Rhodes,  39  Miss.  152. 
*  Lewin  on  Trusts,  308. 


§§  521-523.]       TO  PRESERVE  CONTINGENT  REMAINDERS.  55 

use  of  the  parent  for  ninety-nine  years,  if  he  should  live  so  long^ 
with  remainder  to  the  use  of  trustees  and  their  licirs,  during 
the  life  of  the  termor  upon  trust  to  preserve  the  contingent 
limitations,  and  on  his  deatli  to  other  uses  in  remainder  ;  or  to 
the  use  of  trustees  and  their  heirs,  during  the  life  of  the  parent 
in  trust  for  him,  and  on  his  death  to  the  other  uses  in  remainder. 
Secondly,  the  use  was  to  the  parent  for  life,  with  remainder  to 
trustees  and  their  heirs,  during  the  life  of  the  parent,  in  trust 
to  preserve  the  contingent  limitations,  and  on  his  death  to  other 
uses  in  remainder.     In  the  first  form  of  settlement,  the  ol)ject 
in  view,  by  vesting  the  freehold  in  trustees,  was  to  preserve  the 
contingent  limitations  from  being  destroyed  by  the  surrender 
or  merger  of  the  particular  estate,  which  would  have  been  prac- 
ticable had  the  freehold  been  limited  to  the  parent  himself,  and 
also  to  prevent  the  barring  of  the  entail  and  the  alienation  of 
the  estate  for  purposes  not  authorized  by  the  spirit  of  the  set- 
tlement.    In  the  second  form,  it  was  the  duty  of  the  trustees, 
as  before,  to  preserve  the  contingent  limitations ;  but,  as  the 
freehold  in  possession  was  vested  in  the  parent,  the  trustees 
had  no  power  to  prevent  a  recovery  by  the  father  and  son   as 
soon  as  the  son  came  of  age ;  but  if  the  tenant  for  life  com- 
mitted a  forfeiture,  as  by  a  feoffment  in  fee  in  order  to  defeat 
the  contingent  remainders,  it  was  then  the  duty  of  tlie  trustees 
to  enter  and  so  vest  the  possession  of  the  freehold  in  them- 
selves ;  and  it  was  their  further  duty,  as  in  the  first  form, 
though  the  settlor  himself  might  not  have  contemplated  such 
a  purpose,  not  to  concur  in  putting  an  end  to  the  settlement, 
except  where  such  interference  was  prudent  and  proper.^ 

1  Lewin  on  Trusts,  309  (otli  Loml.  ed.),  404  (2(1  Ainer.  ed.).  There 
is  a  very  considerable  amount  of  learning  in  the  books  upon  the  duty  of 
trustees  under  these  circumstances  :  when  they  should  concur  in  determining 
the  contingent  estates,  when  they  should  concur  in  changing  the  uses  and 
the  limitations  for  the  accommodation  and  benefit  of  families,  and  when  they 
should  apply  to  the  court  for  instruction  and  direction  in  the  performance 
of  their  duties.  The  statute  8  &  9  Vict.  c.  106,  renders  the  machinery  of 
trustees  to  preserve  contingent  remainders  no  longer  necessary  in  England, 
and  Mr.  Lewin  has  left  all  the  learning  u{)on  the  subject  out  of  the  last 


56  OF   TERMS    ATTENDANT.  [CHAP.  XVII. 

§  524.  Where  a  terra  for  years  is  created  by  mortgage  or  by 
will  for  securing  jointures  or  portions,  or  where  a  term  is 
carved  out  of  the  inheritance  for  any  particular  purpose,  and 
there  is  no  condition  in  the  instrument  that  the  term  shall 
cease  when  the  purposes  of  its  creation  are  satisfied,  although 
the  term  or  time  for  which  it  was  carved  out  has  not  elapsed, 
the  holder  of  the  term  for  the  remainder  of  the  time  holds  it  in 
trust  for  the  owner  of  the  inheritance,  and  it  is  said  to  be  a 
term  attendant  upon  the  legal  title.  It  is  sometimes  convenient 
in  English  conveyancing  to  keep  these  terms  outstanding  in 
the  hands  of  a  trustee,  as  the  owner  has  the  right  to  call  at 
any  time  for  a  conveyance  of  them  to  himself;  and  such  term 
may  give  the  owner  of  the  inheritance  a  legal  title  to  the  pos- 
session, anterior  to  some  possible  incumbrances  that  may  have 
been  put  upon  the  estate  prior  to  his  purchase  of  the  inheri- 
tance. In  the  same  manner,  purchasers  in  America  sometimes 
take  assignments  of  mortgages  made  long  before  their  pur- 
chase, in  order,  by  foreclosure  or  otherwise,  to  gain  a  title  prior 
to  other  possible  incumbrances,  anterior  to  their  purchase  of 
the  fee. 

§  525.  Trustees  of  these  dry  terms  hold  them  in  trust  for 
the  owners  of  the  inheritance.  The  rights  and  duties  of  the 
trustees  of  such  terms  are  very  similar  to  the  rights  and  duties 
of  trustees  of  the  dry  legal  estate.^ 

edition  of  bis  valuable  treatise  on  Trusts.  The  reader  will  find  it  in  the 
second  American  edition,  and  in  Hill  on  Trustees,  318.  It  is  not  thought 
necessary  to  pursue  the  subject  further,  as,  in  nearly  all  the  American 
States,  statutes  similar  to  the  statute  of  8  &  9  Vict,  render  trustees  un- 
necessary to  preserve  such  remainders.  Mr.  Washburn  cites  the  statutes 
of  the  various  States.  2  Wash.  Real  Prop.  pp.  202,  262,  263,  266  (1st  ed.). 
See  also  Hill  on  Trustees,  318,  n.  ;  2  Green.  Cruise,  270,  and  n. ;  285,  n.  ;  4 
Kent,  Com.  252.  In  Pennsylvania,  however,  trustees  may  still  be  necessary 
for  this  purpose.  Dunwoodie  v.  Reed,  3  S.  «&  R.  435  ;  Toman  v.  Dunlop,  8 
Penn.  St.  72.  The  case  of  Yanderheyden  v.  Crandall,  2  Denio,  9,  was 
decided  before  the  change  by  the  statutes  in  New  York. 

'  These  terms  are  now  abolished  in  England  by  Stat.  8  &  9  Vict.  c.  112, 
and  have  ceased  to  be  important.      They  never  prevailed  to  any  great 


§§  524-527.]  TRUSTEES   OF    FREEHOLDS.  57 

§  526.  Trustees  of  freeholds  are  the  legal  owners  of  the 
estate,  and  they  alone  can  be  recognized  in  a  court  of  law.^ 
Their  right  to  the  possession  will  depend  entirely  upon  the 
construction  of  the  instrument  of  trust,  and  the  nature  of  the 
duties  required.^  If  their  duties  are  such  that  they  cannot  per- 
form them  v^ithout  the  possession,  the  court  will  give  it  to 
them.3  The  situation  and  condition,  therefore,  of  the  cestuis 
que  trust  may  be  important  on  the  question  of  the  possession 
and  control  of  the  trustee  ;  as  if  the  cestui  que  trust  is  a  married 
woman,  an  infant,  or  a  lunatic,  incapable  of  managing  or  con- 
trolling the  estate,  the  trustee  must  of  necessity  have  the  pos- 
session and  management.*  If  the  trustees  have  the  possession, 
control,  and  management,  they  may  make  necessary  repairs  ;  ^ 
but,  without  some  general  or  special  authority,  they  cannot 
enter  upon  large  improvements.^  If  they  are  trustees  for  the 
sale  of  land  they  will  not  be  allowed  for  improvements,"  and 
no  allowance  can  be  made  for  cultivating  such  lands  ;  ^  nor  will 
the  trustees  be  responsible  for  not  renting  land  that  comes  to 
them  in  trust  for  sale.^ 

§  527.  Where  trustees  are  in  possession,  and  have  the  man- 
agement of  the  estate,  they  must  pay  all  rates  and  taxes,^°  and 

extent  in  this  country,  and  it  is  not  necessary  to  enlarge  upon  the  subject. 
Tlie  reader  who  desires  to  see  the  learning  upon  this  matter  will  find  it  in 
Hill  on  Trustees,  324,  329;  1  Green.  Cruise,  4U,  418,  424,  442,  443;  2 
Green.  Cruise,  63,  170. 

^  Ante,  §  523;  Wickham  v.  Berry,  55  Penn.  St.  70. 

2  Ante,  §  329.  ^  Ante,  §  329;  Tidd  v.  Lister,  5  Mad.  433. 

•»  Tidd  V.  Lister,  5  INIad.  433. 

*  Fontaine  v.  Pellet,  1  Ves.  Jr.  337;  Bowes  v.  Strathmore,  8  Jur.  92; 
Green  v.  AVinter,  1  John.  Ch.  26. 

^  Ibid. ;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231 ;  L'Amoureu.x  v.  Van 
Rensselaer,  1  Barb.  Ch.  34;  Wykoff  v.  Wykoff,  3  W.  &  S.  481 ;  Ames  v. 
Downing,  1  Bradf.  321. 

^  Green  v.  Winter,  1  John.  Ch.  28;  Thompson  v.  Thompson,  16  Wis. 
91.  »  Ibid. 

"  Burr  V.  McEwen,  Baldw.  C.  C.  154 ;  Griffin  v.  Macaulay,  7  Grat.  476. 

'<'  Burr  V.  McEwen,  Baldw.  C.  C.  154;  Lovat  v.  Leeds,  31  L.  J.  Ch.  503. 


58  POWER   OF   LEASING.  [CHAP.  XVII. 

protect  the  estate  from  tax  sales  ;  they  may,  therefore,  insure, 
and  good  management  would  demand  it,  but  they  are  not 
bound  to  do  so.^  Where  they  have  the  management,  they  must 
use  due  diligence  in  collecting  rents.  If  they  are  directed  to 
accumulate  the  rents,  or  to  receive  them  for  any  otlier  purpose, 
they  will  become  personally  liable  if  they  allow  the  tenants  to 
fall  in  arrear,  and  a  loss  is  thus  imposed  upon  the  estate.^ 

§  528.  When  trustees  are  charged  with  the  payment  of  annu- 
ities, debts,  or  legacies,  or  any  other  sums  out  of  the  estate, 
but  have  no  power  of  sale,  they  have  an  implied  power  of  leas- 
ing upon  the  ordinary  terms  or  custom  of  the  State  or  town  in 
which  the  land  is  situated.^  If  the  trust  consists  of  farming 
lands,  the  trustees  can  grant  ordinary  farming  leases  ;  if  of 
houses  in  a  city,  they  can  grant  the  ordinary  leases  of  such 
property.^  But  they  will  not  be  justified  in '  granting  any 
unusual  leases ;  as,  building-leases,  or  leases  for  a  long 
term,^  or  of  unopened  mines, ^  If,  under  such  circumstances, 
a  trustee  uses  due  diligence  in  granting  a  lease  at  a  proper 
rent,  and  for  a  proper  term,  he  will  not  be  responsible,  although 
a  much  larger  sura  may  be  obtained,  before  the  lease  expires, 
by  reason  of  an  increase  or  rise  in  rents.'  It  is  said,  that  the 
neglect  must  approximate  fraud  to  impose  such  a  liability  upon 
a  trustee.^  If,  however,  the  estate  consists  of  a  plantation  and 
slaves,  or  of  a  farm  fully  stocked,  the  trustee  may  not  lease  it 
at  all,  but  he  may  employ  the  personal  property  upon  the  estate 
in  its  cultivation.^     If  the  tenant  for  life  in  occupation  of  the 

1  Ibid. 

2  Tebbs  V.  Carpenter,  1  Mad.  290. 

»  Naylor  v.  Arnitt,  1  R.  &  M.  501;  Newcomb  v.  Keteltas,  19  Barb. 
608 ;  Hedges  v.  Riker,  5  John.  Ch.  163 ;  Black  v.  Ligon,  Harp.  Eq.  205. 
*  Ibid. ;  Greasou  v.  Keteltas,  17  N.  Y.  491;  Pearse  v.  Baron,  Jac.  158. 

5    Ibid. 

«  Clt'gg  V.  Rowland,  L.  R.  2  Eq.  160. 

7  Fenaby  v.  Ilobson,  2  Phil.  255.  "  Ibid. 

»  Dennis  v.  Dennis,  15  Md.  13. 


§§  527-529.]  POWER  of  leasing.  59 

lands  becomes  insolvent,  and  his  rent  is  largely  in  arrear,  the 
trustees  will  be  reimbursed  for  all  the  necessary  expenses  of 
ejecting  him,  and  they  will  be  justified  in  releasing  to  him  the 
arrears  of  rent,  and  in  paying  a  bonus  as  among  the  expenses 
of  obtaining  the  possession.  These  expenses  are  for  the  ben- 
efit of  the  estate.^  Under  the  general  implied  powers  of  leas- 
ing, trustees  can  only  grant  a  lease  in  possession,  and  cannot 
grant  a  lease  in  reversion  ;  ^  and  it  is  doubted  if  they  can  make 
a  lease  to  commence  at  a  future  day.^ 

§  529.  If  special  powers  of  leasing  are  conferred  upon 
trustees,  they  must  follow  the  powers  strictly."*  Any  deviation 
from  the  manner  of  leasing  pointed  out  in  the  trust  instru- 
ment would  be  a  breach  of  the  trust.  Thus  where  leases  are 
to  be  in  possession  and  not  in  reversion,  or  where  the  lessor  is 
not  to  take  any  fine  or  premium  from  the  lessee,  a  lease  made 
contrary  to  these  powers  is  improper  and  would  be  set  aside.* 
Where  there  is  power  to  lease  for  a  certain  number  of  years, 
a  lease  for  a  less  number  is  good,"  but  a  lease  for  a  longer 
term  than  that  prescribed  is  bad,  as  contrary  to  the  power ;  ^ 
although  it  is  said,  that  such  a  lease  may  be  sustained  in  equity 
for  the  proper  number  of  years,  and  that  the  excess  only  is 
void."  It  has  been  held,  however,  where  there  was  a  direction 
to  keep  mines  constantly  leased  upon  leases  not  exceeding  five 
years,  and  it  was  found  that  good  tenants  could  not  be  obtained 
for  so  short  a  term,  and  that  leases  for  such  a  term  would 
destroy  the  mines,  that  a  court  of  equity  could  direct  leases 
to  be  made  for  a  longer  term,  as  for  fifteen  years.^    Under  a 

'  Blue  V.  Marshall,  3  P.  Wins.  381. 

2  Sussex  V.  Worth,  Cro.  Eliz.  5 ;  2  Sug.  Pow.  370. 

8  Sinclair  v.  Jackson,  8  Cow.  581. 

''  Bowes  V.  East  London  Water  Works  Co.  3  Mad.  375 ;  Jac.  321. 

6  Lsherwood  v.  Oldknow,  3  M.  &  S.  382. 
®  Sinclair  v.  Jackson,  8  Cow.  581. 

7  Pawcey>y.  Bowen,  1  Ch.  Ca.  23;  3  Ch.  R.  11. 

8  Matter  of  Philadelphia,  2  Brews.  420. 


60  POWER   OF   LEASING.  [CHAP.  XVII. 

power  to  lease  for  twentj-one  years,  a  lease  for  twenty-one 
years,  determinable  at  the  option  of  tlie  lessee,  is  a  good  exe- 
cution of  the  power  ;  ^  but  where  lands,  not  within  the  authority 
to  lease,  are  joined  in  the  same  lease  at  one  rent  with  lands 
within  the  power,  the  whole  lease  is  without  authority,  for 
there  can  be  no  apportionment  of  the  rent.^  If  the  lease  is  not 
strictly  wdthin  the  terms  of  the  special  power,  the  receiving  of 
rent  by  the  cestuis  que  trust  for  several  years  will  not  confirm 
the  lease,  unless  they  are  aware  of  the  defective  execution  of 
the  power.^  It  seems  to  be  in  accordance  with  sound  principle, 
that  a  lease,  which  is  void  for  want  of  power  in  the  trustee  to 
execute  it,  is  incapable  of  confirmation  by  the  cestuis  que  trust, 
who  have  no  power  either  to  make  or  confirm  leases  ;  '^  but 
perhaps  a  long  acquiescence  by  them  in  occupation  under 
the  lease,  accompanied  by  valuable  improvements  made  by  the 
lessee,  might  estop  them  from  setting  up  a  claim  to  avoid  the 
lease.^  If  the  freehold  is  vested  in  the  trustees,  the  lease  will 
take  effect  out  of  their  legal  interest,  and  will  be  valid  in  law, 
though  it  may  be  a  breach  of  the  trust ;  but  a  court  of  equity 
can  in  all  cases  set  aside  any  conveyance  or  lease  which  is  a 
breach  of  the  trust.^  If  there  is  any  fraud  or  collusion  in  the 
trustee,  the  lease  will  be  set  aside,  or  the  lessee  may  be  con- 
verted into  a  trustee ;  as,  where  the  trustee  and  a  third  person 
by  collusion  suffered  a  lease  to  be  forfeited,  in  order  that  such 
person  might  obtain  the  lease  to  himself,  he  was  held  to  be  a 
constructive  trustee.'^ 

§  530.  Where  the  special  power  is  to  lease  lands  usually  let, 
or  upon  the  usual  rent,  it  will  apply  prima  facie  to  such  lands 

1  Edwards  v.  Millbank,  4  Drew.  606. 
-  Doe  V.  Stephens,  G  Q.  B,  208. 

2  Bowes  V.  East  London  Water  Works  Co.  3  Mad.  375;  Jac.  324. 

*  Sinclair  v.  Jackson,  8  Cow.  581. 

*  Black  V.  Ligon,  Harp.  Eq.  205.     But  see  4  Kent,  107. 

«  Bowes  V.  East  London  Water  Works  Co.  3  Mad.  375 ;  Jac.  324. 
'  Aspinall  v.  Jones,  2  Bennet  (Mo.),  209. 


§§  529, 530.]  POWER  OF  leasing.  61 

only  as  have  been  generally  let,  and  to  the  ordinary  adequate 
rent ;  ^  but  where  the  general  scope  of  the  whole  instrument 
involves  an  intention  that  all  the  lands  shall  be  let,  the  words 
will  be  construed  to  embrace  all ;  ^  and  the  joining  of  several 
parcels  of  land  in  one  lease,  which  have  been  uBually  let  sepa- 
rately, will  not  vitiate  the  execution  of  the  power.^  The  usual 
rent  means  the  old  and  uniform  custom,  and  not  the  rent 
reserved  on  a  single  lease,  executed  just  before  tlie  creation  of 
the  power.^  Where  the  power  is  to  make  a  lease  containing 
"  usual  and  .reasonable  covenants,"  the  rule  is  to  follow  a  lease 
of  the  lands  in  existence  at  the  time  of  the  creation  of*  the 
power,  if  there  is  such  a  lease.^  Where  a  wadow  was  to  have 
the  right  to  cultivate  as  much  land  as  she  pleased,  and  the 
executors  were  to  lease  the  balance,  the  power  of  leasing  was 
held  to  extend  to  the  whole  estate,  upon  the  death  of  the  widow.^ 
If  tlie  trustees  have  a  fee,  determinable  upon  a  contingent 
event,  they  nevertheless  have  power  to  make  a  lease  to  extend 
beyond  their  interest  in  the  land."  A  power  to  lease  for  lives 
will  not  authorize  a  lease  for  years ;  but  under  a  power  to  lease 
not  exceeding  twenty-one  years,  or  three  lives,  a  lease  for 
years  may  be  granted.^  So  a  lease  for  two  lives  will  be  good 
under  a  power  to  lease  for  three  lives.^  In  granting  a  lease 
for  lives,  it  must  be  during  lives  in  being,  and  all  must  l)e  run- 
ning at  the  same  time;^*^  if  some  of  the  lives  have  expired, 
there  is  authority  to  grant  a  lease  during  the  life  of  the  survi- 
vor.^^     A  power  to  lease  land  generally  will  not  authorize  a 

^  Cardigan  v.  Montague,  2  Sugd.  Pow.  App.  14,  339 ;  Orbey  v.  Mohun, 
2  Vern.  531 ;  Pr.  Ch,  257 ;  2  Roll.  Ab.  261,  pi.  11,  12. 
2  Goodtitle  V.  Funucan,  Doug.  565 ;  2  Sugd.  Pow.    349. 
'  Doe  V.  Stephens,  6  Q.  B.  -208 ;  Doe  v.  AVilliams,  11  Q.  B.  688. 

*  Doe  V.  Hole,  15  Q.  B.  848. 

*  Doe  V.  Stepliens,  0  Q.  B.  208.  »  Hoyle  v.  Stowe,  2  Dev.  318. 
"<  Greason  v.  Keteltas,  17  N.  Y.  491. 

8  Wl.itlock's  Case,  8  Co.  R.  69  b;  1  Sugd.  Pow.  514;  2  ib.  354. 
»  2  Sugd.  Pow.  365. 
">  Doe  V.  rialcombe,  7  T.  R.  13;  2  Sugd.  Pow.  364;  Raym.  203. 
"  Doe  V.  Hardwicke,  10  East,  549. 


62  TRUSTEES  OF  LEASEHOLDS.       [CHAP.  XVI. 

lease  of  unopened  mines,  but  a  general  power  will  authorize  a 
lease  of  opened  mines. ^  Trustees  should  not  grant  leases  of 
mines  without  impeachment  of  waste.^  In  deciding  the  length 
of  the  term  for  which  the  lease  may  be  granted,  trustees  must 
be  guided  by  the  best  interests  of  the  estate  ;  at  law  they  may 
exercise  the  power  by  granting  the  longest  term;^  but  in 
equity  they  are  subject  to  the  supervision  of  the  court.*  If 
they  enter  into  covenants  in  leases,  they  will  be  personally 
bound. ^  Whether  the  heirs  of  the  testator,  the  trustee  having 
refused  to  act,  can  execute  the  power  of  leasing,  depends  upon 
the 'terms  of  the  power,  whether  it  is  a  personal  confidence,  or 
is  a  trust  that  goes  with  the  estate  and  office  of  the  trustee.^ 

§  531.  Where  the  trust  property  consists  of  leasehold  estates, 
questions  often  arise  respecting  the  duty  of  the  trustees  to 
renew,  and  on  whom  the  expense  shall  fall.  These  estates  are 
not  so  common  in  the  United  States  as  in  England ;  but  it  may 
be  important  to  state  the  law  on  the  subject,  together  with  the 
American  authorities.  It  has  before  been  stated,  that  where  a 
leasehold  is  limited  in  the  instrument  of  trust  to  a  tenant  for 
life  with  remainder  over,  and  is  rapidly  diminishing  in  value 
through  the  expiration  of  the  term,  it  is  the  duty  of  the  trustee 
to  sell  the  lease  and  invest  the  proceeds,  and  to  pay  the  income 
of  such  investment  to  the  tenant  for  life,  and  the  principal  to 
the  remainder-man.  W^here  there  is  a  specific  gift  of  the  lease- 
hold, or  other  depreciating  property,  the  tenant  is  entitled  to 
receive  the  income  in  specie. 

1  Clegg  V.  Rowland,  L.  R.  2  Eq.  160. 

2  Campbell  v.  Leach,  Amb.  740;  Daly  v.  Beckett,  6  C.  B.  114;  Lee  v. 
Balcarras,  6  C.  B.  849. 

3  Muskeny  v.  Chinnery,  LI.  &  G.  185 ;  1  Sugd.  Pow.  548. 

*  Sutton  V.  Jones,  15  Ves.  587;    Black  v.  Ligon,  Harp.  Eq.  205;    4 
Kent,  107. 

*  Greason  v.  Keteltas,  17  N.  Y.  491. 

6  Robson  V.  Flight,  10  Jur.  (n.  s.)  1228;  11  Jur.  (n.  s.)  147;  5  N.  R. 
344;  34Beav.  110. 


§§  530-533.]  DUTY   TO    RENEW.  63 

§  582.  It  is  the  duty  of  the  trustees  to  renew  all  leases  at  the 
regular  periods,  where  an  express  trust  is  created  for  that  pur- 
pose.^ In  the  absence  of  such  trust  the  duty  may  be  implied 
from  the  expressions  used  by  the  settlor,  or  from  the  whole 
scope  of  the  instrument.^  In  the  absence  of  such  guides,  it  has 
been  held  that  where  a  leasehold  interest  is  settled  in  trust  for 
life  with  remainders  over,  it  must  be  the  general  intention  that 
the  interest  should  continue,  and  be  preserved  for  the  benefit 
of  all  who  take  under  the  limitations  of  the  trust ;  and  that  it 
is  the  duty  of  the  trustees  to  renew,  although  there  are  no  par- 
ticular or  general  expressions  directing  a  renewal.^  So  in  the 
case  of  marriage  articles,  if  renewable  leaseholds  are  part  of 
the  estates  to  be  settled,'  the  court  will  order  a  direction  to  the 
trustees  to  renew  to  be  inserted  in  the  settlement.*  If  the 
trustees  have  a  power  of  renewal  in  the  form  of  a  discretionary 
power,  it  will  generally  be  construed  as  an  absolute  direction  to 
renew,  but  the  manner  and  time  may  be  optional ;  for  where 
trustees  are  appointed  to  preserve  estates  for  those  who  are  to 
take  in  succession,  it  can  hardly  be  supposed  that  it  would  be 
left  discretionary  with  them  to  destroy  the  interests  of  those 
who  are  to  take  in  the  future.^ 

§  538.  The  mere  fact  that  renewable  leaseholds  are  settled 
upon  persons  to  take  in  succession  does  not  ijer  se  give  the  re- 

'  Montforrl  v.  Cadogan,  17  Yes.  48");  19  Ves.  635;  2  ]\Ier.  3;  Cole- 
gi:ave  V.  Manby,  6  Mad.  72;  2  Russ.  238;  Bennett  v.  Colley,  5  Sim.  181 ; 
2  M.  &  K.  235. 

2  Curtis  V.  Lukin,  5  Beav.  U7 ;  Lock  v.  Lock,  2  Vern.  6GG ;  Ilulkes  v. 
Barrow,  Taml.  264. 

8  Verney  v.  Verney,  Amb.  88;  1  Ves.  428;  White  i'.  Wiiite,  4  Ves.  33; 
Montfordv.  Cadogan,  17  Ves.  4S5;  19  Ves.  638;  Lock  v.  Lock,  2  Vern. 
666  ;  Milsiiigton  v.  Mulgrave,  3  Mad.  491 ;  5  Mad.  471 ;  Ilulkes  v.  Barrow, 
Taml.  264. 

■•  Graham  v.  Londonderry,  cited  Stone  v.  Theed,  2  Bro.  Ch.  246;  Pick- 
ering V.  Vowles,  1  Bro.  Ch.  197. 

*  Milsington  v.  Mulgravj,  3  Mad.  491 ;  5  Mad.  472  ;  Mortimer  v.  Watts, 
14  Be;iv.  616;  Verney  v.  Verney,  1  Ves.  430;  Harvey  v.  Harvey,  5  Beav. 
134 ;  Luther  v.  Bianconi,  10  Ir.  Eq.  203. 


64  DUTY   TO   RENEW.  [CHAP.  XVII. 

maincler-man  a  right  to  call  upon  the  tenant  for  life  to  pay  the 
expenses  of  a  renewal.^  In  such  case  it  is  within  the  discre- 
tion of  the  tenant  for  life  to  renew.  And  even  where  a  devise 
was  made  to  a  tenant  for  life,  subject  to  all  fines  as  they  became 
due  yearly  and  for  every  year,  the  tenant  for  life  was  not  obliged 
to  renew.2  But  if  the  tenant  for  life  does  renew,  he  cannot  use 
his  renewal  to  deprive  the  remainder-man  of  his  rights,  but 
such  remainder-man  will  be  entitled  to  the  interest  given  him 
under  the  settlement,  upon  paying  the  proportional  part  of  the 
expenses  of  renewal ;  ^  nor  will  the  mere  fact  of  the  interposi- 
tion of  a  trustee  in  the  settlement  indicate  an  intention  that  the 
tenant  for  life  shall  renew ;  ^  but  such  duties  may  be  imposed 
directly,  or  by  implication  that  a  renewal  must  be  made.^ 

§  534.  If  trustees  neglect  to  renew  leases,  they  will  be  liable 
to  the  cestuis  que  trust  for  all  the  loss  and  damage  that  accrues 
by  reason  of  the  neglect.  Thus,  if  a  remainder-man  subse- 
quently effects  a  renewal  at  an  increased  cost  and  expense, 
they  must  reimburse  him,  or  they  may  be  ordered  to  renew  at 
their  own  expense.^  If  the  tenant  for  life  has  received  an  in- 
creased income,  by  reason  of  the  non-renewal,  the  trustees  may 
withhold  income  from  him  to  equalize  what  they  may  have  been 
obliged  to  pay.  If  there  are  two  successive  tenants  for  life,  they 
must  contribute  according  to  the  duration  of  their  respective 

1  White  0.  White,  4  Ves.  32 ;  9  Ves.  561 ;  Nightingale  v.  Lawson,  1 
Bro.  Ch.  443;  Stone  v.  Theed,  2  Bro.  Ch.  248;  Capel  v.  Wood,  4  Russ. 
500. 

3  Capel  V.  Wood,  4  Russ.  500. 

3  Stone  V.  Theed,  2  Bro.  Ch.  248;  Nightingale  v.  Lawson,  1  Bro.  Ch. 
440 ;  Coppin  v.  Fernyhough,  2  Bro.  Ch.  241 ;  Fitzroy  v.  Howard,  3  Russ. 
225. 

4  OTerrall  v.  O'Ferrall,  LI.  &  G.  t.  Plunk.  79;  French  v.  St.  George,  1 
Dr.  &  Wals.  417  ;  Lawrence  v.  Maggs,  1  Ed.  453. 

5  Verney  t?.  Verney,  1  Ves.  429;  White  v.  White,  4  Ves.  33;  Hulkes 
V.  Barrow,  Taml.  264 ;  Lock  v.  Lock,  2  Vern.  QQQ. 

^  Montford  v.  Cadogan,  17  Ves.  485 ;  19  Ves.  635  ;  2  Mer.  3 ;  Colegrave 
V.  Manby,  6  Mad.  87 ;  2  Russ.  238 ;  Milsington  r.  Mulgrave,  2  Mad.  491 ; 
6  Mad.  472. 


§§  533-535.]  DUTY  TO  renew.  65 

interests.^  The  same  principles  are  applicable  where  estates 
are  settled  without  the  intervention  of  a  trustee,  and  the  tenant 
for  life  is  directed  to  renew.  The  remainder-man  may  renew 
in  case  of  neglect  by  the  tenant  for  life,  and  call  upon  his  estate 
for  reimbursement ;  and  if  the  lease  has  expired  and  is  lost,  so 
that  it  cannot  be  renewed,  the  remainder-man  may  have  com- 
pensation in  damages.^  But  if  the  remainder- man  pays  an 
unreasonable  sum  for  the  renewal,  the  estate  of  the  tenant  for 
life  will  not  be  compelled  to  pay  the  whole,  but  the  court  will 
refer  it  to  a  master  to  determine  a  reasonal)le  amount.^  A  pur- 
chaser from  the  tenant  for  life  is  not,  however,  compelled  to 
make  these  payments,  although  he  has  notice  of  the  settlement, 
unless  the  assignment  to  him  expressly  provides  that  the  inter- 
est taken  by  him  is  subject  to  a  trust  for  renewal.^ 

§  535.  Trustees,  however,  will  not  be  liable  for  not  renewing, 
where  the  trust  for  renewal  cannot  be  carried  into  effect  on 
account  of  its  illegality.^  If  there  is  an  illegal  direction  to 
accumulate  rents  and  profits,  for  the  purpose  of  renewal,  the 
trustee  cannot  be  called  upon  to  renew,  for  the  reason  that  the 
fund,  from  which  he  is  to  pay  the  expenses  of  renewal,  cannot 
legally  exist.^  So  a  lessor  is  not  obliged  to  renew  a  release, 
unless  it  contains  covenants  to. that  effect.  Therefore,  if  the 
lessor  refuses  to  renew,  or  it  he  demands  unreasonable  terms, 
the  trustees  are  not  liable  for  not  renewing.^  In  such  case, 
however,  the  tenant  for  life  cannot  be  allowed  the  exclusive 
benefit  of  the  non-renewal ;  but  so  much  of  the  expenses  as 
would  have  come  out  of  his  interest  will  be  invested  for  the 
benefit  of  the  cestuis  que  trust,  including  the  remainder-men." 

1  Ibid. 

2  Colegrave  v.  Manby,  6  Mad.  87;  2  Russ.  238;  Bennett  v.  Colley,  5 
Sim.  181 ;  2  M.  &  K.  225. 

^  Ibid.  *  Montford  i'.  Cadogan,  19  Ves.  635. 

*  Curtis  V.  Lukin,  5  Beav.  147. 

*  Colegrave  v.  Manby,  6  Mad.  82;  Tardiffr.  Robinson,  G  Mad.  83,  n. 
T  Ibid. ;  Bennett  v.  Colley,  2  M.  &  K.  231 ;  5  Sim.  181. 

VOL.  II.  -  5 


QQ  DUTY   TO    RENEW.  [CHAP.  XVII. 

If  a  leasehold  is  a  loss  to  the  estate,  by  calling  for  the  payment 
of  more  rent  than  is  received,  the  trustees  must  get  rid  of  the 
leasehold  by  assignment,  and  they  have  been  held  responsible 
for  not  doing  so.^ 

§  536.  The  trustee  in  whoni  the  leasehold  interest  vests,  by 
the  settlement  or  will,  is  liable,  as  assignee  of  the  lease,  to  per- 
form all  its  covenants  during  the  continuance  of  his  interest. 
Therefore,  if  he  ceases  to  be  trustee  or  assign  the  lease,  he  will 
be  liable  for  no  covenants,  unless  they  are  broken  while  it  was 
held  by  him.^  But  an  executor  of  a  lessee  is  liable  upon  the 
covenants,  by  reason  of  the  privity  of  estate  ;  ^  and  so  a  trustee 
will  be  liable,  if  he  has  bound  himself  personally.  On  this  ac- 
count, an  executor  or  trustee  cannot  be  required  by  the  cestids 
que  trust  to  assign  over  the  estate  before  he  is  indemnified  for 
such  liability.* 

§  537.  By  the  law  of  tenures,  as  established  under  the  feudal 
system,  the  tenant  was  obliged  to  pay  a  fee  or  fine  to  his  superior 
lord,  upon  every  alienation  of  his  land,  whether  in  fee,  or  for 
life  or  for  years.  Hence,  to  this  day  in  England,  upon  every 
renewal  of  a  lease,  there  is  a  fine  or  a  fee,  considerable  in 
amount,  to  be  paid.^  In  the  United  States,  all  such  restraints 
upon  the  alienation  of  lands  are  inconsistent  with  the  spirit  of 
our  laws  and  institutions,  and  are  absolutely  void,  even  if  an- 
nexed as  terms  or  conditions  in  the  instruments  under  which 
the  lands  are  held.^     Therefore,  one  great  head  of  equity  juris- 

'  Rowley  v.  Adams,  4  M.  &  Cr.  534. 

2  Onslow  V.  Corrie,  2  Mad.  330 ;  Valliant  v.  Dodemede,  2  Atk.  546 ; 
Pitcher  v.  Toovey,  1  Salk.  81;  2  Ventr.  228;  Taylor  v.  Sbum,  1  B.  &  P. 
21 ;  Rowley  v.  Adams,  4  M.  «&  Cr.  532 ;  Trevele  v.  Coke,  1  Vern.  165. 

'  Brett  V.  <  uraberland,  Cro.  Jac.  521. 

*  Simmonds  v.  Borland,  3  Mer.  567  ;  Marsh  v.  Wells,  2  S.  &  S.  90. 

^  2  Black.  Com.  72. 

«  Livingston  v.  Stickles,  8  Paige,  398 ;  De  Peyster  v.  Michael,  6  N.  Y. 
467  ;  Overbagh  v.  Petrie,  6  N.  Y.  510;  8  Barb.  28. 


§§  535-538.]  THE    RIGHT    TO    RENEW,  67 

diction,  in  the  matter  of  trusts  in  leasehold  estates,  is  obsolete 
in  the  United  States.  In  England,  it  is  frequently  a  matter  of 
doubt  and  construction  to  determine  whose  estate  and  interest 
shall  pay  the  fine  and  expenses  of  the  renewal.^ 

§  538.  The  right  to  renew  a  lease  is  a  valuable  right,  and 
may  be  sold  and  conveyed.^  Courts  recognize  this  right,  and 
protect  it  for  the  benefit  of  the  trust  estate.  If  trustees  are 
deprived  of  this  right  by  the  acts  of  third  persons,  they  are 
entitled  to  compensation  ;  as  where  the  land  is  taken  for  public 
works,  by  virtue  of  some  statute,  trustees,  liaving  a  right  by 
custom  or  by  covenant  to  renew  a  lease,  will  have  the  riglit  to 
compensation  for  the  land  taken. -^  Nor  can  a  trustee  renew  a 
lease,  in  his  individual  name  and  for  liis  private  benefit,  even  if 
the  lessor  utterly  refuses  to  renew  the  lease  for  the  benefit  of  the 
cestui  que  trust  ;^  for  the  reason  that  the  trustee  cannot  avail 
himself  of  his  situation  to  make  any  advantage  or  profit  to  him- 
self, and  if  he  makes  a  profit  by  renewing  a  lease  in  his  own 
name,  it  enures  to  the  benefit  of  the  trust  estate,  or  he  shall 
continue  to  hold  it  as  trustee.^  The  same  rule  extends  to  all 
persons  who  hold  any  position  of  influence  and  confidence  in 
respect  to  others,  as  tenants  for  life,  tenants  in  common,  and 
partners.     All  such  persons,  if  they  obtain  the  renewal  of  a 

^  For  the  reasons  stated  in  the  text,  it  is  not  important  in  this  country 
to  notice  all  the  rules  and  distinctions  which  have  been  established  by  the 
authorities  in  England.  If  important,  they  may  be  found  in  Lewin  on 
Trusts,  295-308,  and  Hill  on  Trustees,  431-439. 

2  Phyfe  V.  Wardwell,  5  Paige,  268;  Anderson  v.  Lemon,  8  X.  Y.  236. 

^  Jones  V.  Powell,  4  Beav.  96. 

*  Keeeh  v.  Sandford,  Sel.  Cas.  Ch.  61 ;  1  Lead.  Ca.  Eq.  36,  notes ;  Holt 
V.  Holt,  1  Ca.  Ch.  190;  Fitzgibbon  v.  Scanlan,  1  Dow,  P.  C.  269;  James 
V.  Dean,  11  Ves.  392  ;  1.5  Ves.  236  ;  Parker  v.  Brooks,  9  Ves.  583 ;  Rowe  v. 
Chichester,  Amb.  719  ;  Killick  v.  Flexney,  4  Bro.  Ch.  161 ;  Griffin  v.  Griffin, 
1  Sch.  &  Lef.  352;  Holdrid-e  v.  Gillespie,  2  John.  Ch..33;  McClanahan  v. 
Henderson,  2  A.  K.  Marsh.  388  ;  Galbraith  o.  Eider,  8  Watts,  81 ;  Ileager's 
E.xVs,  15  S.  &  R.  65 ;  Fisk  v.  Sarber,  6  W.  &  S.  18. 

*  Nesbitt  V.  Tredennick,  1  B.  &  B.  29;  James  v.  Dean,  11  Ves.  369. 


68  THE   RIGHT   TO    RENEW.  [CHAP.  XVII. 

lease,  hold  it  for  the  benefit  of  those  interested  with  them  in 
the  estate.^  The  parties,  however,  who  undertake  to  enforce 
this  trust,  must  do  equity,  by  repaying  their  proportion  of  the 
expenses  incurred  in  the  renewal.^ 

1  Palmer  v.  Young,  1  Vern.  376  ;  Pickering  v.  Vowles,  1  Bro.  Cli.  197  ; 
Fitzgerald  v.  Raynsford,  1  B.  «fe  B.  37,  n. ;  Giddings  v.  Giddings,  3  Russ. 
241  ;  Featherstonhaugh  v.  Fenwick,  17  Ves.  298 ;  Rovve  v.  Chichester,  Arab. 
715  ;  Eyre  v.  Dolphin,  2  B.  &  B.  290  ;  Foster  v.  Marriott,  Arab.  658  ;  Tan- 
ner V.  Elworthy,  4  Beav.  487  ;  Randall  v.  Russell,  3  Mer.  196 ;  Vanhorn  v. 
Fonda,  5  John.  Ch.  388  ;  Smiley  v.  Dixon,  1  Penn.  439. 

"  Randall  v.  Russell,  3  Mer.  196 ;  James  v.  Dean,  11  Ves.  396 ;  Miller 
V.  Stanley,  2  De  G.,  J.  &  S.  185. 


§§  538,  539.]       TENANT    FOR    LIFE   AND   REMAINDER-MAN.  69 


CHAPTER   XVIII. 

POWERS  AND    DUTIES    OF    TRUSTEES  AS    BETWEEN    TENANT  FOR  LIFE 
AND  REMAINDER-MAN. 

§  539.  Trustee  must  act  impartially  between  tenant  for  life  and  remainder-man. 
§  540.  When  tenant  for  life  is  entitled  to  the  possession. 
§  541.  Where  the  trust  fund  is  personal  property. 
§  542.  In  what  place  personal  property  may  be  used. 

§  543.  Trustee  must  have  possession  of  stocks  and  similar  securities.  Power  of  attornej- 
to  tenant  for  life. 
§§  544,  545.  As  to  extra-cash  dividends  and  stock  dividends  by  corporations. 
§  546.  As  to  the  increase  of  stock  upon  a  farm  or  plantation. 
§  547.  Of  property  that  perishes  or  is  consumed  in  the  use,  or  decreases  in  value. 
§  548.  Rights  of  tenant  for  life  under  an  absolute  direction  for  conversion. 
§  549.  Reversionarj'  interests  must  be  sold  for  benefit  of  tenant  for  life. 
§  550.  As  to  the  right  of  tenant  for  life  to  income  during  the  first  j'ear,  —  and  after  the 

first  year. 
§  551.  Various  rules  upon  the  same  subject. 
§  552.  As  to  repairs  by  tenant  for  life. 
§  553.  As  to  insurance. 
§  554.  As  to  taxes,  rates,  and  incumbrances. 
§  555.  Where  tenant  for  life  becomes  bankrupt. 
§  556.  As  to  the  apportionment  of  rent,  income,  dividends,  and  annuities. 

§  539.  Where  property  is  settled  upon  a  trustee  to  hold  in 
trust  for  one  person  for  life,  and  the  remainder  over  for  some 
other  person  or  persons,  it  is  the  duty  of  the  trustee  to  consult 
the  interest  of  both  the  tenant  for  life  and  the  remainder-man. 
The  trustee  must  act  impartially,  and  not  give  either  an  advan- 
tage at  tlie  expense,  or  to  the  prejudice,  of  the  other. ^  A  court 
of  equity  can  correct  any  mismanagement  between  the  trustee, 
and  either  the  tenant  for  life  or  the  remainder-man  ;  it  has 

1  Mortlock  V.  Bullor,  10  Ves.  308 ;  Cowgill  v.  Oxmantown,  3  Y.  &  C. 
3G9;  Watts  v.  Girdleston,  6  Beav.  188;  Laiigston  v.  OlHvant,  Coop.  33; 
Stuart  V.  Stuart,  3  Beav.  430;  Pechel  v.  Fowler,  2  Anst.  650;  JNIahon  v. 
Stanhope,  cited  2  Sugd.  Pow.  512;  Marsliall  v.  Sladden,  4  De  G.  &  Sm. 
468;  Moseley  v.  Marshall,  22  N.  Y.  200;  McNeil  v.  McDonald,  22  Ark. 
477. 


70  DUTIES    OF   TRUSTEES.  [CHAP.  XVIII. 

even    set   aside  a  decree  obtained  by  collusion  between  the 
trustee  and  tenant  for  life.^ 

§  540.  The  right  of  the  tenant  for  life  to  the  possession  has 
already  been  stated. ^  Where  property  is  devised  specifically, 
and  the  right  of  the  trustees  to  convert  it  is  excluded,  and  the 
tenant  for  life  can  have  no  beneficial  enjoyment  without  pos- 
session, the  trustees  must  allow  him  such  possession.^  As 
was  before  said,  if  the  title  of  the  tenant  for  life  is  a  legal  and 
not  an  equitable  title,  he  is,  of  course,  entitled  to  the  posses- 
sion ;  '*  but  the  tenant  for  life  is,  in  such  case,  an  implied  or 
quasi  trustee  for  the  remainder-man,  and  a  court  of  equity  can 
enjoin  him  from  injuring  the  inheritance.^  But  if  the  title  is 
equitable  merely,  the  trustees  must  see  that  the  equitable  ten- 
ant for  life  does  not  commit  waste  of  any  kind  ;  ^  and  if  he  is 
tenant  without  impeachment  for  waste,  the  trustees  must  see 
that  the  estate  is  not  materially  lessened  in  value  by  the  use 
made  of  it.'  But  the  trustees  cannot  compel  the  tenant  for 
life  to  repair  ;  and  neither  the  court  nor  the  trustees  can  inter- 
fere with  the  possession  on  such  grounds.^     It  has  been  held, 

1  Wright  V.  Miller,  4  Seld.  9;  Gierke  v.  Devereux,  1  S.  C.  172;  Cun- 
ningham V.  Schley,  41  Ga.  476. 

'^  Ante,  §  329.  ^  Tidcl  v.  Lister,  5  Mad.  432 ;  10  B.  Mon.  290. 

*  Ante,  §  328;  Moseley  v.  Marshall,  22  N.  Y.  200. 

'  Joyce  V.  Gunnels,  2  Rich.  Eq.  259  ;  Horrey  v.  Glover,  2  Hill,  Ch.  515 ; 
Clarke  v.  Saxon,  1  Hill,  Ch.  69;  Shibley  v.  Ely,  2  Halst.  Ch.  181;  Wilson 
V.  Edmonds,  4  Fost.  545  ;  Broom  v.  Curry,  19  Ala.  805. 

®  Tidd  V.  Lister,  5  Mad.  432;  Freeman  v.  Cook,  6  L"ed.  Eq.  376; 
Woodman  v.  Good,  6  W.  &  S.  169. 

7  Waldo  V.  Waldo,  7  Sim.  261;  Leeds  v.  Amherst,  14  Sim.  357;  2  Phil. 
117  ;  Burge  v.  Lambe,  16  Ves.  174 ;  Marker  v.  Marker,  9  Hare,  1 ;  4  Eng. 
L.  &  Eq.  95;  Newdigate  v.  Newdigate,  1  Sim.  131;  Wykham  v.  Wykham, 
19  Ves.  14;  Smythe  v.  Smythe,  2  Swans.  251;  Moms  v.  Morris,  15  Sim. 
610;  Brydges  v.  Brydges,  2  Sim.  150;  Davies  v.  Lee,  6  Ves.  786;  Cham- 
berlain V.  Dummer,  3  Bro.  Ch.  549  ;  Woodman  v.  Good,  6  W.  &  S.  169 ; 
Briggs  V.  Oxford,  19  Jur.  817  ;  1  De  G.,  M.  &  G.  363 ;  Whitfield  r.  Burnett, 
2  P.  Wms.  242. 

«  Powis  V.  Blagrave,  1  Kay,  495;  4  De  G.,  M.  &  G.  448;  Gregg  v. 
Coates,  23  Beav.  33. 


§§  539-541.]    POSSESSION  by  tenant  for  life.  71 

however,  in  tlie  United  States,  that  the  tenant  for  life  is  obhged 
to  Iceep  the  buildings  in  which  he  lives  from  going  to  decay,  by 
using  ordinary  care,  but  that  he  is  not  obliged  to  expend  any 
extraordinary  sums.^  Although  the  rules  as  to  waste  are  the 
same  in  this  country  and  in  England,  yet  it  has  been  said  that 
there  should  be  a  different  application  of  them  here,  on  account 
of  the  difference  of  circumstances,  and  that  tenants  for  life  are 
encouraged  to  open  mines  and  cut  timber,  for  the  reason  that 
such  acts  are  rather  improvements  than  waste,  in  America.^ 
This  may  be  true  in  some  parts  of  the  country,  where  it  is 
important  to  clear  the  land  and  develop  its  resources,  but  it 
is  not  true  in  the  older  States. 

§  541.  Where  the  tenant  for  life  is  entitled  to  the  bene- 
ficial use  of  movable  articles,  heirlooms,  furniture,  plate,  pict- 
ures, and  similar  things,  the  trustees  must  take  in  the  first 
instance  a  schedule  of  the  articles  delivered  to  such  tenant  for 
life  signed  i)y  him  ;  ^  but  if  there  is  any  danger  that  the  articles 
will  be  wasted,  secreted,  or  carried  away,  security  may  be 
insisted  upon,  and  the  trustees  or  the  cestui  que  trust  in 
remainder  may  apjily  to  the  court  for  an  injunction,  and  a 
decree  that  the  tenant  for  life  be  required  to  give  proper  secu- 
rity for  their  safety.*     But  where  trustees  under  a  will  were 

'  Wilson  V.  Edmonds,  11  Fost.  545. 

^  Williams  on  Roal  Prop.  23,  n. ;   Lynn's  App.  31  Penn.  St.  44. 

'  lA'(;ke  17.  BeiHutt,  1  Atk.  471;  Bill  v.  Kynaston,  2  Afk.  82;  Cheshire 
V.  Chesliire,  2  Ired.  Eq.  590;  Westcott  v.  Cady,  5  John.  Ch.  334;  Hender- 
son V.  Vaiilx,  10  Yerg.  30;  Covenhoven  v.  Shuler,  2  Pai^e,  122  ;  De  Peyster 
V.  Clenditininji,  8  Paige,  295;  Spear  v.  Tinkham,  2  Barb.  Ch.  211  ;  Emmons 
V.  Cairnes,  3  Barb.  243  ;  Langworthy  v.  Chadwick,  13  Conn.  42  ;  Hudson  v. 
Wadsworth,  8  Conn.  363;  Nanee  v.  Coxe,  10  Ala.  125;  Mortimer  v. 
Moffatt,  4  Hen.  &  Munf.  503;  Shinning  v.  Style,  3  P.  Wms.  3.36. 

*  Woodman  v.  Good,  6  W.  &  S.  169;  Swann  v.  Ligan,  1  McCord,  Ch. 
227;  Hendersons.  Vaul.x,  10  Yerg.  30;  Covenhoven  w.  Shider,  2  Paige,  122; 
Braswell  v.  Morehcad,  1  Busb.  Eq.  26  ;  Lippincottr.  Warder,  14  S.  &  K.  118  ; 
Rimey  v.  Green,  18  Ala.  771;  Kinnard  v.  Kinnard,  5  Watts,  108;  Wescott 
V.  Cady,  5  Jolm  Ch.  334;  Langworthy  v.  Chadwick,  13  Conn.  42;  Bill  v. 
Kynaston,  2  Atk.  82;  Frazer  v.  Beville,  11   Grat.  9;  Foley  v.  Burnell,  1 


72  POSSESSION    BY   TENANT   FOR   LIFE.       [CHAP.  XVIII. 

directed  to  hold  property  for  a  certain  term,  and  then  to  pay  it 
over  to  persons  named,  to  be  lield  by  them  during  their  own 
lives,  security  cannot  be  required  from  the  tenants  for  life  for 
its  preservation  for  the  remainder-men,  if  no  such  security  is 
required  by  the  terms  of  the  will.^  In  Pennsylvania,  there  is 
special  legislation  authorizing  the  executor  to  take  security .- 
In  case  of  a  legacy  for  life  of  money  or  stocks,  the  tenant  for 
life  cannot  liave  possession  of  them  without  giving  security  for 
the  protection  of  the  remainder-man.^  But  the  right  of  pos- 
session by  the  tenant  for  life,  even  in  such  a  case,  may  depend 
upon  the  terms  of  the  will.* 

§  542.  Personal  chattels,  like  furniture  and  other  articles, 
may  be  used  by  the  tenant  for  life,  if  he  is  entitled  to  the  pos- 
session in  any  house  or  place  ;  or  he  may  let  tliem  out  for  hire,^ 
but  he  cannot  pawn  or  sell  them  beyond  the  extent  of  his  inter- 
est ;  ^  but  articles  in  a  house,  in  the  nature  of  heirlooms,  are 
annexed  to  the  house,  and  go  with  it,  therefore  they  cannot  be 
removed.' 

Bro.  Ch.  279 ;  Hudson  v.  Wadsworth,  8  Conn.  363 ;  Holliday  v.  Coleman, 

2  Munf.  162  ;  Mortimer  v.  MofFatt,  4  Hen.  &  Munf.  503;  Cbisholm  v.  Starke, 

3  Call,  25 ;  McLemore  v.  Good,  1  Harp.  Eq.  272 ;  Cheshire  v.  Cheshire,  2 
Ired.  Eq.  569;  Sutton  i;.  Cradock,  1  Ired.  Eq.  134;  Howell  v.  Howell, 
3  Ired.  Eq.  522;  Clarke  v.  Saxon,  1  Hill,  Ch.  75  ;  Spear  v.  Tucker,  2  Barb. 
Eq.  211;  Condy  v.  Adrian,  1  Hill,  Ch.  154.  Where  a  purchaser  from  the 
tenant  for  life  was  compelled  to  give  security.  Walcott  v.  Cady,  5  John. 
Ch.  51 ;  Pringle  v.  Allen,  1  Hill,  Ch.  135 ;  Howe  v.  Dartmouth,  2  Lead.  Ca. 
Eq.  262. 

1  Waldo  V.  Cummings,  43  111.  421. 

'  Act,  1834;  Dunlop,  528;  Rodgers  «.  Rodgers,  7  Watts,  19;  Lippincott 
V.  Wardei-,  14  S.  &  R.  IIS;  and  Kinnard  v.  Kinnard,  5  Watts,  108,  were 
decided  before  this  legislation. 

'  Patterson  v.  Devlin,  1  McMul.  Eq.  459;  Freeman  v.  Cooke,  6  Ired.  679; 
Eichelberger  v.  Barnitz,  17  S.  &  R.  293 ;  Rodgers  v.  Rodgers,  7  Watts,  19  ; 
Kinnard  v.  Kinnard,  5  Watts,  108. 

*  De  Gratfenreid  v.  Green,  1  Cold.  109. 

5  Marshall  v.  Blew,  2  Atk.  217. 

6  Hoare  v.  Parker,  2  T.  R.  .376. 

'  Cadogan  v.  Kennett,  Cowp.  432. 


§§  541-544.]       RIGHTS    OF    THE    TENANT    FOR    LIFE.  73 

§  543.  Where  the  trust  property  consists  of  stocks  and  other 
personal  securities,  the  trustee  must  retain  possession  for  the 
benefit  of  the  remainder-man  ;  but  he  may  put  the  tenant  for  life 
in  possession  of  the  dividends,  interest,  or  income,  by  giving  him 
a  power  of  attorney  to  collect  them  as  they  become  due.  The 
power  should  be  restricted  to  the  collection  of  the  income  ;  for 
if  he  gave  the  tenant  for  life  power  to  sell  the  securities,  ha 
would  commit  a  breach  of  trust.  Nor  should  it  be  used  after 
the  death  of  the  tenant  for  life ;  for  the  trustee  would  be  re- 
sponsible to  the  remainder-man  for  all  income  received  by  the 
representatives  of  the  tenant,  accruing  after  his  death.  Care 
must  be  taken  by  the  trustee,  after  giving  the  power,  himself 
not  to  receive  the  dividends  ;  for  that  would  be  a  revocation  of 
the  power,  and  a  new  one  would  be  necessary.  So  the  death 
of  the  trustee,  or  of  one  of  several  trustees,  would  be  a  revoca- 
tion.^ If,  at  any  time,  the  tenant  for  life  obtains  more  than 
belongs  to  him,  the  trustee  may  withhold,  or  recoup  from, 
subsequent  income.^ 

§  544.  Considerable  difference  of  opinion  and  practice  has 
existed  respecting  the  rights  of  the  tenant  for  life,  and  of  the 
remainder-man,  to  extraordinary  dividends  or  bonuses  from 
corporations.  The  early  Englisli  rule  held  that  extra  dividends 
paid  in  cash,  and  a  fortiori  if  they  were  declared  or  paid  in 
capital  stock,  went  to  the  capital  of  the  trust  fund,  and  were 
held  by  the  trustee  for  the  remainder-man  ;  and  that  the  in- 
come only  from  such  extra  dividends  belonged  to  the  tenant 
for  life.'^  This  rule,  applied  to  extra-cash  dividends  from  the 
earnings  of  the  capital  stock  of  corporations,  worked  a  great 
hardship  upon  the  tenant  for  life,  and  it  is  unreasonable.  In 
Barclay  v.  Wainwright,  Lord  Eldon  first  threw  a  doubt  over 

•  Sadler  v.  Lee.  6  Beav.  o"24;  Ilill  on  Trustees,  386;  Lewin,  485. 

2  Williams  v.  Allen,  32  Beav.  650;   Barratt  v.  Wyatt.  30  Beav.  442. 

'  Brander  v.  Brander,  4  Ves.  801;  Paris  v.  Paris,  10  Ves.  184;  Witts  v. 
Steere,  13  Ves.  67 ;  Clayton  v.  Greshain,  10  Ves.  288 ;  Hooper  v.  Rossitor, 
13  Price,  774;  1  McClel.  527  ;  Preston  v.  Melville,  16  Sim.  163. 


74  RIGHT    TO    EXTRA   DIVIDENDS.  [CHAP.  XVIII. 

the  cases,  by  decreeing-  an  increased  or  extra  dividend  to  the 
tenant  for  life.^  It  was  afterwards  said,  that  wherever  the 
increased  dividend  was  made  clearly  and  distinctly  as  a  divi- 
dend only,  the  tenant  for  life  should  have  it,  but  where  it  was 
not  clearly  given  as  a  dividend,  it  was  considered  as  an  accre- 
tion to  the  capital,  and  went  to  the  remainder-man.-  Thus 
cash  dividends,  extra  dividends,  or  bonuses  declared  from  the 
earnings  of  corporations,  are  now  held  to  be  income  and  to 
belong  to  the  tenant  for  life.^  So  also  dividends  and  bonuses 
earned  before  the  testator's  death,  but  declared  afterwards,  are 
held  to  be  income  and  to  belong  to  the  tenant  for  life.'*  But 
the  enhanced  price  for  which  stocks  sell,  by  reason  of  dividends 
earned,  but  not  declared,  belongs  to  the  remainder-man  and 
not  to  the  tenant  for  life.''  Where  a  tenant  for  life  is  entitled 
to  the  income,  a  year  or  more  after  the  testator's  death  having 
expired,  and  stocks  are  sold  before  the  day  of  the  dividend,  in 
order  to  complete  a  purchase  of  land  which  was  directed  by 
the  will,  the  tenant  for  life  is  entitled  to  compensation  for  the 
loss  of  his  income.^  So  if,  under  a  gift  in  a  will  to  an  executor 
of  so  much  stock  or  other  property  as  will  produce  $2,000  per 
year,  which  is  to  be  paid  over  to  a  tenant  for  life,  property  is 
set  apart  in  good  faith,  with  the  consent  of  all  parties,  sufficient 
to  produce  $2,000,  and  afterwards  the  property*produces  much 
more,  and  there  is  no  provision  in  the  will  for  such  a  contin- 
gency, the  tenant  for  life  will  be  entitled  to  the  whole  income, 
and  may  maintain  a  bill  in  equity  for  it." 

1  Barclay  v.  Wainwright,  14  Ves.  66  ;  Norrls  v.  Harrison,  2  Mad.  279. 

2  Hooper  v.  Rossiter,  1  McClel.  527. 

^  Price  V.  Anderson,  15  Sim.  173;  Bates  v.  jVIackinley,  ,31  Beav.  280; 
Johnson  v.  Johnson,  15  Jur.  711;  5  Eng.  &  Eq.  161;  Murray  v.  Ghisse,  17 
Jur.  816  ;  Cuming  v.  Boswell,  2  Jur.  (n.  s.)  1005  ;  Clive  v.  Olive,  Kay,  600; 
Plumbe  V.  Neild,  6  Jur.  (n.  s.)  529;  Wright  v.  Tucket,  1  Johns.  &  Hem. 
266  ;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231 ;  Ware  v.  McCandlish,  10  Leigh, 
595  ;  Read  v.  Head,  6  Allen,  171. 

"  Bates  V.  Ma(;kinley,  31  Beav.  280. 

5  Scholfiehl  V.  Refern,  32  L.  J.  Ch.  627. 

*  Londesborough  v.  Somerville,  19  Beav.  295. 

'  Russell  V.  Loring,  3  Allen,  126. 


§§  544, 545.]  STOCK  dividends.  75 

§  545.  Another  question  has  lately  arisen,  upon  which  there 
is  much  diversity  of  opinion  and  practice.  The  question  is,  to 
whom  stock  dividends,  so  called,  belong.  Are  they  income, 
and  belong  to  the  tenant  Cor  life  ;  or  capital,  and  belong  to  the 
remainder-man  ?  By  the  early  English  rule,  they  went  with 
all  extra-cash  dividends  of  bonuses  to  the  remainder-man.^ 
This  rule  has  been  so  far  changed,  that  dividends  in  money 
which  come  from  the  earnings  of  the  capital  invested  belong 
to  the  tenant  for  life.'-^  But  this  question  has  arisen  where  a 
corporation  has  capitalized  a  part  of  its  earnings,  by  using 
them  to  enlarge  its  property,  or  to  improve  its  value.  In  such 
cases,  corporations  sometimes  vote  to  issue  and  apportion 
among  their  stockholders  new  certificates  of  stock,  which  cer- 
tificates (in  whole  or  in  part)  represent  the  amount  of  earnings 
that  have  been  capitalized,  as  some  of  the  books  call  it.  On 
one  side  of  this  question,  it  is  urged  that  nothing  is  income 
from  the  stock  of  a  corporation  until  the  corporation  itself  has 
set  it  apart  as  income,  and  declared  it  to  be  payable  in  money 
as  a  dividend ;  that  a  corporation  may  in  good  faith  determine 
whether  it  will  declare  a  dividend  or  not,  and  it  may  also 
declare  whether  any  part  of  its  earnings  shall  be  turned  into 
capital  or  not ;  that  if  a  corporation  in  good  faith  uses  a  part 
of  its  earnings  in  enlarging  and  improving  its  works,  and 
thereby  increases  the  value  of  its  stocks,  such  increased  value 
belongs  to  the  remainder-man  ;  that  it  is  inunaterial  whether 
a  corporation  allows  the  old  shares  to  stand  at  this  increased 
value,  or  whether  it  issues  new  certificates  of  shares  to  repre- 

'  Brander  v.  Brander,  4  Ves.  800;  Paris  v.  Paris,  10  Ves.  185;  Witts  v. 
Steere,  13  Ves.  67  ;  Clayton  v.  Grcsliam,  10  Ves.  "288 ;  Hooper  v.  Rossiter, 
13  Price,  774;   1  McCk-l.  o27  ;   Preston  i\  Melville,  16  Sim.  163. 

2  Barclay  v.  Waiiiwriglit,  l-l  Ves.  66;  Norris  v.  Harrison,  2  Mad.  279; 
Hooper  v.  Rossiter,  1  McClel.  527  ;  Price  v.  Anderson,  15  Sim.  -173 ;  Bates 
V.  Mackiiiley,  31  Beav.  280;  Jolmson  v.  Johnson,  5  Eng.  L.  &  Eq.  llH  ; 
15  Jur.  714:;  Murray  v.  Glasse,  17  Jur.  816;  Cuming  v.  Boswell,  2  Jur. 
(n.  s.)  1005;  Clive  v.  Clive,  Kay,  600;  Plumbe  v.  Neild,  6  Jur.  (n.  s.)  529; 
Wright  V.  Tucket,  1  John.  &  llem.  266;  Cogswell  i-.  Cogswell,  2  Edw.  Ch. 
231;  Ware  v.  McCandlish,  11  Leigh,  595;  Lord  v.  Brooks,  52  N.  H.  77, 


76  STOCK    DIVIDENDS.  [CHAP.  XVIII. 

sent  this  new  and  increased  value  of  its  capital  stock  ;  that 
nothing  is  a  dividend,  in  the  legal  sense  of  the  word,  which  is 
not  a  division  of  money  from  what  the  corporation  has  deter- 
mined to  be  income  ;  that  if  a  corporation  determines  to  apply 
a  certain  sum  of  money  in  its  hands  to  purposes  for  which 
capital  is  usually  applied,  and  to  issue  new  certificates  of  stock 
to  its  shareholders,  in  the  proportion  of  their  number  of  shares, 
to  represent  such  sum,  it  is  in  no  legal  sense  a  dividend,  but 
an  apportionment  of  capital,  and  although  such  proceedings 
are  in  popular  language  and  in  corporate  votes  often  called 
stock  dividends,  they  are  not  dividends  in  law,  but  are  accre- 
tions to  the  capital,  and  go  to  the  remainder-man.  It  is 
further  urged,  in  illustration,  that  if  the  trust  fund  is  invested 
in  land,  and  the  land  rises  in  value  from  its  situation,  or  from 
the  use  and  necessary  improvements  made  by  the  tenant  for 
life,  such  increased  value  becomes  capital  and  belongs  to 
the  remainder-man.  Chief-Baron  Alexander,  Yice-Chancellor 
Wood,  now  the  Lord  Chancellor,  and  the  Supreme  Court  of 
Massachusetts,  have  adopted  this  view,  and  have  determined 
that  such  appropriations  of  earnings  and  the  new  certificates 
of  stock,  representing  additions  to  the  capital  stock,  whether 
declared  under  the  name  of  stocks,  dividends,  or  however  ap- 
pointed or  apportioned  by  the  corporation  or  its  directors,  are  cap- 
ital and  belong  to  the  remainder-man.^  The  rule  laid  down  in 
these  several  cases  seems  to  be  this,  that  where  the  apportion- 
ment of  shares,  or  stock  dividend,  so  called,  creates  new  capital, 
in  addition  to  that  already  existing,  thereby  enlarging  and  in- 
creasing the  value  of  the  property,  whether  it  comes  from  earnings 
or  from  other  sources,  as  from  rise  in  value,  it  belongs  to  the  re- 
mainder-man ;  while  all  dividends  paid  in  cash  or  otherwise,  not 
in  addition  to  or  in  diminution  of  the  capital,  go  to  the  tenant  for 
life.  These  courts,  observing  this  general  distinction,  range  all 
cases  under  one  or  the  other  head,  without  so  much  regard  to  the 

'  Hooper  v.  Rossiter,  1  McClel.  527 ;    In  re  Barton's  Trust,  L.  R.  5  Eq. 
238 ;  Minot  v.  Paiue,  99  Mass.  101  ;  Balch  v.  Hallett,  10  Gray,  403. 


§  545.]  STOCK    DIVIDENDS.  77 

name  given  to  the  dividend  as  to  the  actual  character  of  the 
transaction.  Thus  In  re  Barton's  Trust,  and  in  Minot  v. 
Paine/  where  the  earnings  were  not  divided  as  cash,  but  were 
expended  on  the  property,  the  capital  increased,  and  a  stock 
dividend  declared,  it  was  held  to  go  to  the  remainder-man  ; 
while  in  Leland  v.  Hayden,^  the  corporation  having  purchased 
its  own  stock  with  its  earnings,  and  then  divided  it  among  its 
stockholders,  it  was  held  that  it  went  to  the  tenant  for  life,  it 
not  being  an  accretion  to  the  capital.  But  in  Daland  v.  Wil- 
liams, the  court,  looking  to  the  substance  of  the  transaction, 
held  that,  although  the  dividend  was  declared  in  stock  or  cash 
at  the  option  of  the  stockholder,  yet  if  he,  being  a  trustee, 
elected  to  take  the  stock,  and  it  was  for  the  interest  of  the 
estate  that  he  should,  and  all  the  parties  so  agreed,  it  then 
belonged  to  the  remainder-man  and  not  to  the  tenant  for  life.^ 
On  the  other  hand,  it  has  been  claimed  in  behalf  of  the  tenant 
for  life,  that,  as  nothing  but  profits  can  be  divided,  all  dividends 
declared,  whether  in  stock  or  cash,  being  the  produce,  pro- 
ceeds, or  result  of  the  property,  belong  to  the  tenant  for  life. 
Cases  involving  this  question  have  been  decided  in  several 
States,  contrary  to  the  decisions  in  Massachusetts  and  the 
courts  in  England  ;  and  it  has  been  decreed  that  stock  divi- 
dends, in  whole  or  in  part,  belong  to  the  tenant  for  life,  and 
not  to  the  remainder-man.  In  Pennsylvania,  it  was  held  that 
all  accumulations  in  stock,  after  the  death  of  a  testator,  are  as 
much  a  part  of  the  income  of  the  principal  as  current  divi- 
dends, and  as  such  belong  to  the  tenant  for  life  ;  and  that  no 
action  whatever  of  the  corporation  could  deprive  the  tenant 
for  life  of  them  and  give  them  to  the  remainder-man  ;  that  the 
value  of  stock  held  by  the  testator  at  the  time  of  his  death 
is  the  capital  of  the  trust,  and  must  remain  subject  to  the 
trusts  in  the  will ;  that  all  income  of  such  capital,  whether  in 

•  Ibid. 

2  Leland  v.  Hayden,  102  Mass.  5o0. 

•*  Daland  i\  Williams,  101  Mass.  bll. 


78  STOCK   DIVIDENDS.  [CHAP.  XVIII. 

the  form  of  other .  certificates  or  not,  must  be  regarded  as  iii- 
come.i     While  in  New  York  and  New  Jersey,  masters  were 

^  Earp's  App.  28  Penn.  St.  3G8.  The  question  stated  at  lentrth  in  this 
section  is  important  to  tenants  for  life  and  to  remainder-men  ;  and  from  the 
character  of  the  decisions  in  the  various  States,  and  from  the  great  number 
of  States  in  which  no  decision  has  yet  been  had,  it  may  be  considered  an  open 
question,  at  least  in  a  great  majority  of  the  States.  In  only  two  States  have 
there  been  decisions  in  the  courts  of  last  resort,  and  in  those  States  the 
decisions  are  quite  different,  not  to  say  antagonistic.  There  is  no  doubt  of 
the  doctrine  in  England.  Beginning  with  the  rule,  that  all  extra  dividends 
or  "bonuses,"  even  if  paid  in  cash,  should  go  to  the  remainder-man  [see 
cases  before  cited],  it  gradually  came  about  that  all  such  dividends  made  as 
"  dividends  "  from  the  earnings,  produce,  proceeds,  interest,  or  income  of  the 
corporation,  should  be  considered  income,  and  should  belong  to  the  tenant 
for  life.  But  while  such  was  the  rule  in  regard  to  all  dividends,  made  as 
dividends,  it  became  equally  well  settled  that  all  appropriations  from  the 
earnings  made  to  the  capital,  or  stock  dividends  as  they  are  sometimes  called, 
belong  to  the  remainder-man.  Thus  in  Hooper  v.  Rossiter,  1  McClel.  536 
(1824),  Ch.  Baron  Alexander  said  :  "  All  the  cases  proceed  upon  the  same 
principle.  It  seems  from  all  of  them,  from  the  first  to  the  last,  that  wher- 
ever the  addition  was  made  clearly  and  distinctly,  as  dividend  only,  the  tenant 
for  life  was  to  have  it ;  but  wherever  it  was  not  clearly  given  as  a  dividend, 
it  was  considered  as  an  accretion  of  capital,  divisible  among  the  proprietors. 
I  have  looked  into  all  the  cases  with  great  care,  and  that  seems  to  be  the  re- 
sult of  them.  Whether  the  testator  makes  use  of  the  expression  '  dividends,' 
or  '  dividends  and  profits,'  or  '  dividends,  interest,  and  profits,'  or  (as  in  this 
case)  '  interest,  dividends,  profits,  and  proceeds,'  I  look  upon  all  of  them  to 
come  to  the  same  thing,  and  that  this  is  too  nice  a  circumstance  to  found  any 
distinction  on.  This  disposes  of  the  claim  of  the  plaintiff,  as  tenant  for  life." 
And  see  Mclaren  v.  Stainton,  3  De  G.,  F.  &  J.  202;  Kinmouth  v.  Brigham, 
6  Allen,  270.  Again,  in  1868,  In  re  Barton's  Trusts,  L.  R.  5  Eq.  244,  Vice- 
Chancellor  Wood,  in  answer  to  the  argument  and  the  observation  of  Lord 
Eldon,  that  the  corporation  has  the  power  to  give  the  property  to  the  tenant 
for  life,  or  to  the  remainder-man,  said :  "  The  dividend  to  which  the  tenant 
is  entitled  is  the  dividend  which  the  company  chooses  to  declare.  And  when 
the  company  meet  and  say,  that  they  will  not  declare  a  dividend,  but  will 
carry  over  some  portion  of  the  half-year's  earnings  to  the  capital  account, 
and  turn  it  into  capital,  it  is  competent  for  them  to  do  so ;  and  when  this  is 
done  everybody  is  bound  by  it,  and  the  tenant  for  life  of  those  shares  cannot 
complain.  ...  If  a  man  has  his  shares  placed  in  settlement,  he  gives  his 
trustees,  in  whose  names  they  stand,  a  power  of  voting,  and  he  must  use  his 
influence  to  get  them  to  vote  as  he  wishes.  But  where  the  company,  by  a 
majority  of  their  votes,  have  said,  that  they  '  will  not  divide  '  this  money,  but 
turn  it  into  capital,  capital  it  must  be  from  that  time.     I  think  that  is  the  true 


§  545.]  STOCK    DIVIDENDS.  79 

appointed  to  inquire  and  determine  how  much  of  the  stock 
dividend  was  capital,  or  made  to  represent  an  increase  in  the 

principle.'"  The  meaning  of  this  is,  that  where  a  corporation  votes  "  not  to 
divide  "  its  earnings,  but  to  turn  it  into  capital,  it  becomes  capital  to  the  cor- 
poration, and  that  what  is  capital  to  the  corporation  must  be  capital  to  its 
shareholders ;  and  although  the  corporation  may  vote  that  such  increased 
capital  shall  be  apportioned  or  divided  among  its  shareholders  pro  rata,  it  is 
not  a  "  dividend  "  of  "  profits  "'  or  "  interest  "  or  "  income,"  or  "  proceeds," 
or  "produce,"  within  the  meaning  of  a  testator  in  his  will,  or  within  the 
meaning  of  the  law.  The  same  principle  was  reiterated  by  V.  C.  ^lalins,  in 
Dec.  1870,  in  Ricketts  v.  Harling.  Weekly  Notes,  Dec.  17,  1870,  p.  260. 
The  Supreme  Court  of  Massachusetts,  in  Minot  v.  Paine,  99  Mass.  101, 
probaMy  intended  to  establish  this  general  doctrine,  but  the  opinion  went 
somewhat  further,  and  laid  down  a  rule  which  is  not  properl}'  guarded,  and 
as  a  rule  it  has  been  modified  or  abandoned  in  the  later  decisions.  The 
rule,  as  stated,  is  "  to  regard  cash  dividends,  however  large,  as  income,  and 
stock  dividends,  however  made,  as  capital."  In  Snnpson  v.  Moore,  30  Barb. 
637,  there  was  a  cash  dividend  of  eighteen  per  cent,  which  embraced  a  part 
of  the  capital  of  the  corporation,  it  being  a  bank  in  process  of  liquidating 
and  winding  up  its  affairs.  This  manner  of  declaring  a  dividend  would  not 
prejudice  where  the  same  person  was  entitled  to  the  whole  sum  beneficially ; 
but  where  a  tenant  for  life  was  entitled  to  the  income,  and  a  remainder-man 
was  entitled  to  have  the  capital  reinvested,  it  became  necessary,  of  course, 
to  determine  the  proportions  belonging  to  each.  And  so  in  Leland  v.  Hay- 
den,  102  Mass.  550,  where  a  dividend  was  made  of  the  stock  of  the  corpora- 
tion, which  stock  had  been  bought  in  by  the  corporation  itself  with  its  earnings, 
and  the  dividend  so  made  did  not  i-epresent  any  increase  of  the  capital 
stock,  the  court  decreed  it  to  be  income  and  to  belong  to  the  tenant  for  life. 
If  the  court  had  been  content  to  reaffirm  the  principle  of  the  later  English 
cases,  such  as  Hooper  v.  Rossiter,  and  Re  Barton's  Trusts,  and  had  not  laid 
down  the  rule  as  quoted  above  from  MInot  v.  Paine,  it  would  have  saved 
some  misapprehension.  This  rule,  in  the  broad  terms  in  which  it  is  stated, 
has  been  thus  modified  in  Leland  v.  Mayden,  and  the  I'ule  as  stated  in  the 
text  seems  to  be  the  result  of  the  Massachusetts  decisions  on  this  subject. 

Earp's  App.  28  Penn.  St.  368,  is  a  leading  case  against  the  authority  of 
the  English  and  Massachusetts  cases.  In  that  case  a  testator  had  541  shares 
of  stock  in  a  corporation,  the  par  value  of  which  was  $50,  but  which  at  the 
time  of  his  death,  in  18-18,  were  worth  $125  per  share.  "The  shares  went 
on  increasing  in  value,  in  addition  to  regular  dividends,  so  that,  in  1854:,  the 
corporation  called  in  the  old  certificates,  and  issued  certificates  for  1350 
shares  of  the  value  of  $80  per  share,  in  place  of  the  541  held  by  the  testator 
at  his  death.  Or,  by  another  mode  of  calculating,  the  shares  were  worth 
$67,500  at  the  time  of  the  testator's  death,  and  $108,000  in  1854.  The 
question  arose  whether  this  increase  of  $40,500  belonged  to  the  tenants  for 


80  STOCK    DIVIDENDS.  [CHAP.  XVIII. 

value  of  the  property,  and  liow  much  came  from  income  or 
earnings,  and  also  how  much  of  the  stock  dividend  was  made 

life  or  the  remainder-men.  The  action  of  the  corporation,  in  making  this 
change  of  certificates,  does  not  very  clearly  appear;  nor  does  it  very  clearly 
appear  whether  the  increased  value  was  wholly  from  accumulation  of  [)rofits, 
or  whether  any  part  of  it  was  from  the  rise  of  the  value  of  the  property. 
Perhaps  this  is  not  material,  from  the  view  taken  by  the  court.  Chief 
Justice  Lewis  in  the  opinion  says  :  "  It  is  equally  clear,  that  tlie  profits, 
arising  since  the  death  of  the  testator,  are  '  income  '  within  the  meaning  of 
the  will,  and  should  be  distributed  among  the  appellants  (tenants  for  life). 
The  profits  amounted,  at  the  time  of  the  issue  of  new  certificates  of  stock, 
to  the  sum  of  $40,500,  exclusive  of  the  current  semiannual  dividends  which 
have  been  previously  declared  and  paid.  That  sum  is  the  rightful  property 
of  the  appellants.  The  managers  might  withhold  the  distribution  of  it  for  a 
time,  for  reasons  beneficial  to  the  interests  of  the  parties  entitled.  But  they 
could  not,  by  any  form  of  procedure  whatever,  deprive  the  owners  of  it, 
and  give  it  to  others  not  entitled.  The  omission  to  distribute  it  semiannu- 
allv,  as  it  accumulated,  makes  no  change  in  its  ownership.  The  distribution 
of  it  among  the  stockholders,  in  the  form  of  new  certificates,  has  no  effect 
whatever  upon  the  equitable  right  to  it.  It  makes  no  kind  of  difference 
whether  this  fund  is  secured  by  541  or  by  1350  certificates.  Its  character 
cannot  be  changed  by  the  evidence  given  to  secure  it.  Part  of  it  is  '  prin- 
cipal,' the  rest  is  '  income'  within  the  meaning  of  the  will.  The  principal 
must  remain  unimpaired  during  the  lives  of  the  appellants,  and  the  '  income  ' 
arising  since  the  death  of  the  testator  is  to  be  distributed  among  them. 
Standing  upon  principle,  and  upon  the  intent  of  the  testator  plainly  expressed 
in  his  will,  we  have  no  difficulty  whatever  in  making  this  disposition  of  the 
fund."  In  regard  to  this  case,  it  may  be  said  that  it  goes  too  far.  It  cannot 
be  sustained  in  all  its  broad  assertions,  whether  they  are  necessary  for  the 
decision  of  the  case  or  not.  For  instance,  it  has  never  been  supposed  that 
a  stockholder  in  a  corporation  had  any  ownership  in  the  earnings  of  a  cor- 
poration before  the  corporation  itself  had  set  apart  a  sum  as  earnings,  and 
declared  and  divided  it  as  a  dividend.  Crawford  v.  North  Eastern  Railw. 
3  K.  &  J.  744;  Williston  v.  Michigan,  &c.,  Railw.,  13  Allen,  400.  If, 
therefore,  a  corporation,  acting  in  good  faith,  uses  its  earnings  in  improving 
its  property,  and  neglects  to  apportion  or  divide  them,  how  can  a  tenant 
for  life  enforce  his  ownership  ?  Can  a  court  of  equity  compel  a  corporation, 
acting  in  good  faith,  to  declare  a  dividend  ?  Further,  it  has  generally  been 
supposed,  that  if  a  corporation  does  not  declare  a  dividend,  and  the  value 
of  the  stock  increases  from  the  use  of  the  earnings,  as  capital  in  its  business, 
or  if  the  value  of  its  stock  rises  from  any  reason,  and  the  stock  is  sold  by 
the  trustee  for  an  enhanced  price,  all  the  increased  value  over  the  original 
appraised  value  belongs  to  the  trust  fund,  and  the  income  thereof  only  goes 
to  the  tenant  for  life,  and  the  fund  to  the  remainder-man.     But  if  this  is 


§  545.] 


STOCK    DIVIDENDS.  81 


up  of  accumulations  of  earnings  before,  and  how  much  from 
earnings  after,  tlie  investment.^ 

not  so,  and  the  increased  value  of  the  stock  goes  to  the  tenant  for  life,  as 
held  by  Chief  Justice  Lewis,  is  the  converse  of  his  proposition  true;  and  if 
stock  sells  for  less  than  its  api)raised  value  at  the  time  of  the  institution  of 
the  trust,  can  the  trustee  withhold  dividends  or  income  from  the  tenant  for 
life  until  the  original  appraised  value  is  made  good  ?  The  authority  of  a 
corporation  to  apply  any  part  of  its  earnings  to  the  permanent  improvement 
of  its  property,  and  thus  to  deprive  the  tenant  for  life  of  his  share  of  the 
income  or  earnings  of  the  corporation,  is  denied  in  this  case,  at  least  so  far 
as  the  rights  of  a  tenant  for  life  are  concerned.  In  short,  the  proposition 
or  assertion  of  this  case  that  the  earnings  are  the  rightful  projjerty  of  the 
tenant  for  life,  and  that  no  action  of  the  corporation  can  alter  his  rights  to 
them,  cannot  be  sustained  in  practice,  for  the  simple  reason  that  nothing 
belongs  to  the  stockholder  until  a  dividend  is  made,  and,  until  a  dividend 
is  made,  the  tenant  for  life  has  no  rights  or  ownership  to  be  altered  or 
affected  by  the  action  of  the  corporation.  Coleman  t'.  Columbia  Oil  Co.  51 
Penn.  St.  7-4;  Granger  v.  Bassett,  98  Mass.  462;  March  v.  Eastern  R.R. 
Co.  43  N.  H.  515;  Crawford  v.  North  Eastern  Railw.  3  K.  &  J.  744. 
But  see  Johnson  v.  Bridgewater  Co.  14  Gray,  274 ;  Taft  v.  Providence, 
&c.,  Railw.  8  R.  I.  310;  McLaughlin  v.  Detroit,  &c.,  8  Mich.  100;  Williston 
V.  Michigan,  &c.  13  Allen,  400;  Footers  App.  22  Pick.  299.  It  was  said  by 
Lord  Eldon,  that  the  corporation  has  it  in  its  power  to  give  the  benefit  to 
the  tenant  for  life  or  not ;  and  this  he  said  not  as  a  proposition  of  law,  but 
as  a  statement  of  the  practice  of  the  courts.  The  corporation  cannot  alter 
any  of  the  rights  of  the  tenant  for  life,  nor  can  it  invest  any  of  his  money  in 
a  manner  not  agreeable  to  him,  for  the  simple  reason  that  until  the  corpora- 
tion has  declared  the  dividend  the  tenant  for  life  has  no  rights  to  be  altered, 
and  no  money  to  be  invested.  It  is  only  after  the  corporation  has  made  a 
dividend,  and  the  trustee  has  it  in  hand,  that  the  tenant  for  life  has  any 
right,  or  is  in  any  position  to  claim  any  thing.  The  corporation  nuist  deal 
with  its  stockholders  as  absolute  owners.  If,  therefore,  the  corporation 
has  a  right  to  turn  any  part  of  its  '*  income"  into  capital,  as  against  the 
absolute  owner,  who  has  not  only  the  life-interest,  but  the  whole  interest  in 
himself,  it  must  have  the  same  right  as  against  the  trustee,  who,  so  far  as 
the  corporation  is  concerned,  is  the  absolute  owner  of  tlie  stocks.  Tlie 
corporation,  then,  would  seem  to  have  the  right,  acting  in  good  faith,  to  apply 
its  income  as  capital  to  its  business,  especially  if  the  corporation  itself,  or 
its  directors,  acting  within  the  scope  of  their  authority,  vote  to  do  so.  If 
the  corporation  votes  to  do  so,  and  tluis  increases  the  value  of  tbe  shares  in 


'  Clarkson  v.  Clarkson,  18  Barb.  61G ;    Simpson  v.  Mooro,  30  Barb. 
638;  Van  Doren  v.  Olden,  19  N.  J.  (4  C.  E.  Green),  117. 

VOL.  II.  6 


82  STOCK    DIVIDENDS.  [CHAP.  XVIII. 

§  546.   A  different  rule  seems  to  apply  to  the  gift  of  a  farm 
and  stock  of  cattle  for  life.     In  such  cases,  all  improvements 

the  hands  of  the  trustees,  but  creates  no  new  shares,  can  the  tenant  for  life 
call  for  this  increased  value?  If  he  can,  and  the  case  in  Pennsylvania  seems 
so  to  decide,  a  new  principle  will  be  established  in  the  government  of  cor- 
porations and  in  the  administration  of  trusts.  It  is  apparent  from  these 
observations,  that  the  opinion  in  the  case  of  Earp's  Appeal  cannot  be  carried 
to  the  logical  conclusions  to  which  it  leads.  It  is  proper  to  say,  however, 
that  the  nature  of  the  acts  by  the  corporation  does  not  very  clearly  appear. 
Whether  the  corporation  intended  to  make  a  stock  dividend  or  not,  or 
■whether  the  accumulations  were  used  in  the  legitimate  business  of  the  cor- 
poration as  capital,  or  whether  it  remained  accumulated  income  not  divided, 
and  not  applied  to  capital,  does  not  certainly  appear ;  perhaps  for  the 
reason  that  the  court  treats  such  considerations  as  immaterial.  In  New 
York,  the  case  of  Simpson  v.  Moore,  31  Barb.  638,  has  little  to  do  with  the 
question,  for  the  reason  that  the  cash  dividend  made  in  that  case  was  partly 
composed  of  earnings,  and  jiartly  of  capital  of  a  corporation  that  was  wind- 
ing up  its  affairs.  But  the  case  of  Clarkson  v.  Clarkson,  18  Barb.  646,  is 
a  direct  decision  upon  the  point,  that,  if  a  corporation  makes  a  stock 
dividend  from  its  gains,  profits,  income,  and  proceeds,  such  stock  dividend 
must  be  considered  as  income  from  the  original  investment,  and  belongs  to 
the  tenant  for  life ;  but  if  any  thing  is  given  to  the  trustee,  not  as  interest, 
dividend,  or  proceeds,  but  as  part  of  the  capital,  it  is  capital,  and  belongs 
to  the  remainder-man.  The  court  sent  the  case  to  a  referee  to  determine 
the  facts.  In  New  Jersey,  in  the  case  of  Van  Doren  v.  Olden,  19  N.  J. 
117,  the  chancellor  approved  of  the  reasoning  of  the  court  in  New  York 
and  Pennsylvania,  and  sent  the  case  to  a  master  to  inquire  and  report  how 
much  of  the  stock  dividend  was  capital,  and  how  much  income,  and  also  how 
much  of  the  stock  dividend  was  made  up  of  accumulations  before  the  invest- 
ment of  the  trust  fund  in  the  stock  of  the  corporation,  and  how  much  of  it 
came  from  earnings  after  the  investment.  The  court  of  Massachusetts 
notices  a  difficulty  in  making  satisfactory  inquiries  on  these  points,  as 
corporations  might  refuse  to  expose  their  business,  or  they  might  be  out  of 
the  jurisdiction  of  the  court,  and  situated  so  that  it  would  be  impossible  to 
arrive  at  a  satisfactory  result.  It  is  quite  important  that  a  principle  should 
be  established  to  guide  trustees  in  the  performance  of  their  duties,  as  in 
many  cases  the  remainder-men  are  infants,  or  they  are  not  even  in  existence 
when  the  question  arises,  and  should  be  settled.  Generally,  the  rights  of 
such  cestuis  que  trust  cannot  be  definitively  adjusted  until  they  are  compe- 
tent to  act  for  themselves,  and  call  for  a  settlement  of  the  accounts.  Thus, 
trustees  may  be  compelled  to  rectify  any  mistake  they  may  make  in  this 
matter  years  after  the  event.  See  the  question  further  discussed  by  Mr. 
Justice  Ladd  in  Lord  v.  Brooks,  52  N.  H.  77. 

In  Read  v.  Head,  6  Allen,  174,  it  was  decided  that  dividends  of  a  land 


§  546.]  FARM   STOCK    AND    TOOLS.  83 

made  upon  the  real  estate  by  the  tenant  for  life  will  accrue  to 
the  reraainder-man  as  of  course.  But  any  increase  in  the 
farming  stock  will  belong  to  the  tenant  for  life.     He  is  under 

company,  whose  income  was  made  from  sales  of  its  land  or  capital  in  business, 
belonged  to  the  tenant  for  life  under  the  will  of  a  testator,  althou;j;li  such  sales 
might  exhaust  the  capital  of  the  corporation  and  entirely  defeat  the  remainder- 
man. This  decision  went  upon  the  ground  that  it  was  the  intention  of  the 
testator  when  he  devised  the  income  of  such  stock  to  one  for  life,  that,  as  the 
tenant  for  life  could  have  no  income  except  from  such  dividends  as  came  from 
capital,  he  must  take  the  dividends  as  made.  All  the  cases  profess  to  go 
upon  the  intention  of  the  testator.  Therefore  a  testator  may  foreclose  this 
question  in  his  will  by  giving  such  directions  as  to  leave  no  question  as  to 
his  intention.  And  see  Balch  v.  Hallett,  10  Gray,  403  :  Heard  v.  Eldredge, 
109  Mass.  258. 

In  Atkins  v.  Abree,  12  Allen,  359,  where  a  corporation  increased  the 
number  of  its  shares,  and  required  the  par  value  of  such  shares  to  be  paid  in 
by  the  subscribers  therefor;  and  as  the  shares  Avere  above  par,  and  as  the 
right  to  sub  cribe  for  the  same  was  a  valuable  right,  it  gave  this  right  to  its 
old  stockholders,  —  it  was  determined  that  this  right  belonged  to  the  capital 
invested,  and  went  to  the  remainder-man  with  the  capital ;  that  it  was  neither 
a  cash  nor  a  stock  dividend,  nor  income  of  any  kind,  but  an  advantage,  or 
possibility,  or  opportunity  belonging  to  the  capital ;  see  Gray  t".  Portland 
Bank,  3  Mass.  364,  to  the  same  effect.  But  in  Wiltbank's  App.  64  Penn. 
St.  256,  a  corporation  increased  its  shares,  and  gave  the  right  to  subscribe 
therefor  to  its  old  shareholders  at  par ;  a  trustee  took  the  shares  that  the 
trust  estate  was  entitled  to  subscribe  for,  and  paid  for  them  with  his  own 
money,  and  sold  the  shares  for  an  advance.  This  advance  he  carried  to  the 
credit  of  the  capital  of  the  trust  fund,  which  would  eventually  have  gone  to 
the  remainder-man.  But  the  court  held,  that  this  advance  above  the  par 
value  was  a  "premium"  on  the  stock,  and  was  a  "product"  of  it,  and 
belonged  to  the  tenant  for  life.  If  this  case  is  carried  to  its  logical  results, 
it  must  be  held  that  if  a  trustee  sells  stock  for  more  than  it  is  appraised  in 
his  inventory,  or  if  he  invests  in  the  stock  of  a  corporation,  and  such  stock 
increases  in  value  from  any  cause,  he  must  in  all  cases  pay  the  increased  value 
to  the  tenant  for  life.  This  may  not  be  just  and  equal  for  the  remainder-man, 
for  he  must  bear  all  the  risks  of  depreciation,  or  of  total  loss  from  long  delay  ; 
while,  on  the  other  hand,  if  this  rule  is  carried  out,  it  is  not  possible  for  him 
to  reap  any  advantage  from  an  increase  of  value. 

The  great  argument  in  Massachusetts,  which  does  not  seem  yet  to  have 
been  considered  by  the  court,  is  this :  Corporations  are  forbidden  to  make 
dividends  except  from  profits  ;  if,  therefore,  a  corporation  declares  a  dividend, 
whetlu-r  payable  in  stock  or  in  money,  such  dividend  must  accrue  from  profits 
upon  the  capital  invested,  and  it  being  profit  upon  the  capital  stock  nivcstcd, 
it  must  belong  to  the  tenant  for  life. 


84  FARM   STOCK    AND    TOOLS.  [CHAP.  XVIII. 

no  obligation  to  increase  tlie  stock  upon  the  farm  ;  and  if  he 
does  so,  tlie  increase  will  not  be  capital,  but  will  inure  to  the 
benefit  of  the  tenant  for  life  or  his  representatives, ^  A  differ- 
ent rule  was  applied  in  the  Southern  States  in  relation  to  the 
gift  of  negro  slaves  for  life.  In  Virginia,  Alabama,  North 
Carolina,  and  South  Carolina,  the  increase  of  such  slaves  was 
added  to  the  capital,  and  went  to  the  remainder-man.^  In 
Maryland,  the  general  rule  was  applied,  and  the  tenant  for  life 
took  the  increase  of  the  slaves ;  ^  but  where  the  income  of  a 
farm,  on  which  there  were  slaves,  was  given  to  one  for  life,  the 
increase  was  allowed  to  the  remainder-man.*  In  Pennsylvania, 
it  was  held  that  the  remainder-men  were  entitled  to  farm  stock 
and  implements  purchased  by  the  tenant  for  life  to  keep  up  the 
stock  and  tools  ;  but  this  was  under  the  special  words  of  a  will.^ 
The  general  rule  is,  that  the  tenant  for  life  is  under  no  obliga- 
tion to  replace  those  things  given  for  life,  which  are  consumed 
by  the  using,  and,  if  he  purchases  other  articles  in  the  place  of 
them,  such  articles  are  his  own.^  Underbrush  and  timber  cut 
periodically  in  the  regular  course  of  thinning  forests,  are  to  be 
treated  as  income,  and  belong  to  the  tenant  for  life  ;  but  timber 

'  Robertson  v.  Collier,  1  Hill,  Eq.  370;  Calhoun  v.  Furgeson,  3  Rich.  Eq. 

170;  Woods  V.  Sullivan,  1  Swans.  607;  Horrey  v.  Glover,  2  Hill,  Eq.  515; 

Patterson  v.  High,  8  Ired.  Eq.   62;  Scott  v.  Dobson,  1   H.  &,  McH.  IGO; 

Wooten  V.  Burch,  2  Md.  Ch.   191 ;  Holmes  v.  Mitchell,  4  Md.  Ch.  163 ; 

Patterson  v.  Devlin,   1   McMul.  459;  Evans  v.   Iglehart,  6  G.  &  J.  172; 

Poindexter  v.  Blackburn,   1  Ired.  Eq,  28(3 ;  Hunt   v.  Watkins,  1   Humph, 

498;  Saunders  v.  Houghton,  8  Ired.  Eq.  217, 

^  Ellison  V.  Woody,  6  Munf.  308 ;  Calhoun  v.  Furgeson,  3  Rich.  Eq.  160; 

Covington  v.  McEntire,  2  Ired.  Eq.  316;  Patterson  v.  High,  8  Ired.  Eq.  52; 

Milledge  v.  Lamar,  4  Des.  616;  Strong  v.  Brewer,  7  Ala.  713;  Robertson 

V.  Collier,  1  Hill,  Eq.  370;  Patterson  v.  Devlin,  1  McMul.  459;  Horrey  v. 

Glover,  2  Hill,  Eq.  515. 

3  Scott  ('.  Dobson,  1  H.  &  McH.  160 ;  Holmes  v.  Mitchell,  4  Md.  Ch. 

163 ;  Evans  v.  Iglehart,  6  G.  &  J.  172 ;  Wooten  v.  Burch,  2  Md.  Ch,  191. 
■»  Holmes  v.  Mitchell,  4  Md,  Ch,  263 ;  4  Md,  R,  532, 
'"  Flowers  v.  Franklin,  5  Watts,  265.  * 

6  Patterson  v.  Devlin,  1  McMul,  459 ;  Calhoun  v.  Furgeson,  3  Rich.  Eq, 

160  ;   Black  v.  Ray,  1  Dev,   &  Bat,  Eq.  413 ;   Covenhoven  v.  Shuler,  2 

Paige,  131. 


§§  546, 547.]  SPECIFIC  gifts.  85 

not  cut  in  the  regular  course  of  thinning,  but  to  improve  the 
growth  of  the  remaining  trees,  belongs  to  the  capital  of  the 
trust.  Gravel  sold  from  land  is  income,  and  the  proceeds  belong 
to  tlie  tenant  for  life ;  but  the  expense  of  fencing  waste  lands 
given  for  the  general  benefit  of  the  trust  must  be  paid  out  of 
the  capital. 1 

§  547.  Where  there  is  a  specific  gift  for  life  of  things  which 
are  consumed  in  the  using,  the  tenant  for  life  must  have  the 
possession  and  the  use,  according  to  the  gift,  and  the  gift  or 
remainder  over  is  void.^  But  if  the  gift  of  such  articles,  or  of 
perishable  articles,  is  residuary/  or  (general,  the  trustee  must  sell 
the  articles  and  invest  the  proceeds,  so  that  the  tenant  for  life 
may  receive  the  interest  or  income,  and  the  principal  sum  remain 
for  the  remainder-man.^  If  the  property  consists  of  leaseholds, 
annuities,  or  other  interests,  which  grow  less  valuable  by  lapse 
of  time,  they  must  be  sold,  and  the  proceeds  invested  in  some 
permanent  form,  so  that  the  interest  can  be  paid  to  the  tenant 

»  Cowley  V.  Wellesley,  L.  R.  1  Eq.  G57. 

2  Tyson  v.  Blake,  22  N.  Y.  558;  Shaw  v.  Huzzey,  41  Me.  495 ;  Scott  r. 
Perkins,  28  Me.  22;  McDonnald  v.  Walgrove,  1  Sand.  Ch.  275;  McLane 
V.  McDonald,  2  Barb.  S.  C.  537;  Wright  v.  Miller,  8  N.  Y.  25. 

3  Clark  V.  Clark,  8  Paige,  152;  Williamson  v.  Williamson,  6  Paige,  298; 
Randall  v.  Russell,  3  Mer.  194;  Porter  v.  Tournay,  3  Ves.  314;  Andrew  v. 
Andrew,  1  Coll.  690;  Spear  v.  Tnikham,  2  Barb.  Ch.  211;  Emmons  v. 
Cairns,  3  Barb.  243;  Cairns  v.  Chaubert,  9  Paige,  IGO;  Wood;?  v.  Sullivan, 

1  Swan,  507;  Covenhoven  v.  Shuler,  2  Paige,  122  ;  Eichelberger  v.  Barnitz, 
17  S.  &  R.  293;  Booth  v.  Ammerman,  4  Bradf.  132;  Bradner  v.  Falkner, 

2  Kern.  472;  Patterson  v.  Devlin,  1  McMnl.  Eq.  459;  Robertson  v.  Collier, 
1  Hill,  Eq.  373;  Horrey  v.  Glover,  2  Hill,  Eq.  515;  Calhoun  v.  Furgeson, 
7  Rieh.  Eq.  1G5;  Saunders  v.  Houghton,  8  Ired.  Eq.  217  ;  Taylor  v.  Bond, 
1  Busb.  Eq.  25  ;  Homer  v.  Shelton,  2  Met.  194.  In  Maryland,  however, 
under  the  act  of  1798,  c.  101,  it  was  held  that  the  general  rule  as  to  conver- 
sion was  not  in  force  in  that  State,  and  that  the  tenant  for  life  under  a 
general  residuary  clause  was  entitled  to  enjoy  the  articles  of  property  that 
fell  into  the  residue  in  specie.  P^vans  v.  Iglehart,  6  G.  &  J.  192.  But  if 
the  residue  consists  of  money,  or  property,  the  use  of  whicli  is  a  conversion 
into  money,  the  executor  or  trustee  must  convert  it  into  money  and  invest  it. 
Evans  v.  Iglehart.  6  Gill  &  J.  192 ;  Wooten  v.  Burch,  2  Md.  Ch.  199. 


86  SPECIFIC   GIFTS.  [CHAP.  XVIII. 

for  life,  and  the  remainder-man  can  receive  a  proper  sum  as 
principal. 1  If  the  trustee  does  not  convert  such  property  within 
a  reasonable  time,  the  remainder-man  can  proceed  against  him 
as  for  a  breach  of  trust.  The  tenant  for  life  will  be  compelled 
to  refund  whatever  he  has  received  beyond  his  equitable  pro- 
portion, and  the  trustees,  in  the  event  of  the  failure  or  inability 
of  the  tenant  for  life  to  refund,  must  make  good  the  difference.^ 
If,  however,  the  remainder-man  acquiesces  for  a  long  time  in 
the  receipt  of  the  whole  actual  income  by  the  tenant  for  life, 
or  does  not  claim  any  relief  for  such  payments,  the  court 
will  confine  its  decree  to  conversion.  So,  if  all  parties  consent 
that  annuities  and  other  rights  may  not  be  sold,  the  court  will 
sanction  their  retention  by  the  trustees.^     The  rights  of  tenant 

1  Ante,  §§  449,  450;  Minot  v.  Tbompsou,  106  Mass.  684;  Howe  v.  Dart- 
mouth, 7  Ves.  137;  Mills  v.  Mills,  7  Sim.  501;  Litchfield  v.  Baker,  2  Baav. 
481 ;  Alcock  v.  Sloper,  2  M.  &  K.  701 ;  Fearns  v.  Young,  9  Ves.  552 ; 
Pickering  v.  Pickering,  2  Beav.  57;  4  M.  &  Cr.  298;  Dimes  v.  Scott,  4 
Russ.  200;  Cairns  v.  Chaubert,  9  Paige,  160;  Clark  v.  Clark,  8  Paige,  152; 
Benn  v.  Dixon,  10  Sim.  630  ;  Eichelberger  v.  Barnitz,  17  S.  &  R.  293 ; 
Covenhoven  v.  Shuler,  2  Paige,  132;  Wooten  v.  Burch,  2  Md.  Ch.  190; 
Kinmouth  v.  Brigham,  5  Allen,  270.  Farming  stock  is  not  -within  the  rule. 
Groves  v.  Wright,  2  K.  &  J.  347. 

'  Ibid. ;  Kinmouth  v.  Brigham,  5  Allen,  270.  In  Meyer  v.  Simonson,  5 
De  G.  &  Sm.  726,  Vice-Chancellor  Parker  stated  the  rules  which  govern  the 
court  on  the  subject  as  follows  :  "  The  personal  estate  of  a  testator  may  be 
considered  as  divided  into  three  different  classes:  (1.)  Property  which  is 
found  at  the  testator's  death  invested  in  such  securities  as  the  court  can 
adopt,  as  money  in  the  funds  or  on  real  securities.  The  tenant  for  life  is 
entitled  to  the  whole  income  of  this.  (2.)  Propei'ty  which  can  be  converted 
into  money  without  sacrificing  any  thing  by  a  forced  sale.  As  to  this  the 
rule  is  clear:  it  must  be  converted,  and  the  produce  must  be  invested  in 
securities  which  the  court  allows,  and  the  tenant  for  life  is  entitled  to  the 
income  of  such  investment.  (3.)  Property  which,  according  to  a  reasonable 
administration,  is  not  capable  of  an  immediate  conversion,  and  which  cannot 
be  sold  immediately  without  involving  a  sacrifice  of  both  principal  and  interest. 
In  this  case  the  rule  is  to  take  the  value  of  the  testator's  interest,  and  to  give 
the  tenant  for  life  the  income  of  that  present  value."  Kinmouth  v.  Brigham, 
5  Allen,  270. 

^  Litchfield  V.  Pickering,  2  Beav.  481 ;  Pickering  r.  Pickering,  4  M.  & 
Cr.  298;  Glengall  v.  Barnard,  5  Beav.  245. 


§§  547,  548.]  TRUSTEES   TO    CONVERT.  87 

for  life  and  remainder-man  will  depend  very  much  upon  the 
construction  of  the  will  and  the  directions  contained  in  it.^ 
If  leaseholds  and  terminable  animities  are  rapidly  growing  less 
valuable,  or  if  other  property  is  perishing,  and  they  are  given 
specifically  in  the  will  for  the  tenant  for  life,  he  is  entitled 
to  them,  although  the  remainder-man  will  he.  entirely  ex- 
cluded ;  for  the  reason  that  the  testator  himself  had  the 
right  to  make  such  disposition  of  his  estate  as  he  saw  fit,  and 
if  he  conferred  upon  the  remainder-man  only  the  possible 
chance  of  taking  what  might  be  left  by  the  tenant  for  life 
unexhausted,  the  remainder-man  will  receive  all  that  was  in- 
tended for  him,  and  he  has  no  right  to  complain.^  So  where 
discretion  was  given  to  trustees,  to  pay  the  income  to  a  tenant 
for  life,  or  to  purchase  an  irredeemable  annuity,  and  there  was 
a  gift  over,  the  trustees  did  not  purchase  the  annuity,  but  paid 
the  cestui  que  trust  from  time  to  time  more  than  the  income, 
but  less  than  the  principal,  it  was  held  to  be  a  proper  exercise 
of  the  discretion.^ 

§  548.  If  there  is  a  positive  direction  in  a  will  that  the  trus- 
tees shall  convert  the  personal  property  into  government  or 
real  securities,  and  hold  them  in  trust  for  one  for  life  and 
remainder  over,  the  cestui  que  trust  for  life  is  entitled  to  receive 
only  so  much  income  as  would  have  arisen  from  the  personal 
estate,  if  converted  and  invested  within  a  year  after  the  testa- 

'  Moseley  v.  Marshall,  22  N.  Y.  205. 

*  Howe  V.  Dartmouth,  7  Ves.  149 ;  Lord  v.  Godfrey,  4  Mad.  4.55 ; 
Vaughan  i;.  Buck,  1  Phil.  80;  Bethune  v.  Kennedy,  1  M.  &  Cr.  116;  Pick- 
ering V.  Pickering,  4  M.  &  Cr.  299 ;  Phillips  v.  Sargent,  7  Hare,  3:^,  where 
it  was  held  that,  if  the  trustees  wrongfully  converted  such  property,  the 
tenant  for  life  was  entitled  to  the  whole  fund  to  the  exclusion  of  the 
remainder-man,  Beaufoy's  Est.  1  Sm.  &  Gif.  22 ;  Re  Steward's  Est. 
1  Dru.  636;  Howe  ».  Howe,  14  Jur.  359;  Cotton  v.  Cotton,  14  Jur.  950  ; 
Morgan  v.  Morgan,  14  Beav.  72;  Pickup  v.  Atkinson,  4  Hare,  628;  Prend- 
ergast  v.  Prendergast,  3  H.  L.  Ca.  195. 

'  Messena  v.  Carr,  L.  R.  9  Eq.  260,  and  see  Miller  v.  Miller,  L.  R.  13 
Eq.  267. 


88  TRUSTEES   TO    CONVERT.  [CHAP.  XYIII. 

tor's  deatli.  It  has  already  been  stated  that  trustees  are  allowed 
one  year  to  convert  the  estate  into  the  securities  directed  by 
the  will,  or  allowed  by  the  law.^  If,  therefore,  a  security  bear- 
ing a  much  higher  rate  of  interest  remains  undisposed  of,  they 
cannot  pay  the  whole  interest  so  arising  to  the  tenant  for  life ; 
and  if  they  pay  to  him  the  whole  extra  interest,  they  would  be 
liable  to  make  good  to  the  remainder-man  the  difference 
between  what  should  have  been  paid  under  the  above  rule, 
and  the  sum  actually  paid.^  If  they  afterwards  dispose  of  the 
security,  thus  bearing  a  higher  rate  of  interest,  more  advanta- 
geously than  they  could  have  done  within  the  year,  they  will 
not  be  allowed  to  reimburse  themselves  for  the  sums  they  are 
liable  to  pay  to  the  remainder-man ;  but  they  will  be  charged 
with  all  the  interest  they  received,  and  with  the  full  amount 
for  which  they  sold  the  securities,  and  will  be  credited  only 
with  the  amount  that  they  should  have  paid  the  tenant  for  life.^ 
It  is  said,  however,  that  if  there  is  no  express  direction  in  the 
will  for  conversion,  the  trustees  will  be  justified  in  paying  over 
to  the  tenant  for  life  all  the  income  received  from  the  securi- 
ties, whatever  the  rate  of  interest,"^  for  trustees  have  a  discre- 
tion to  convert  or  not  as  they  see  fit.^ 

§  549.  The  trustee  must  exert  himself  equally  to  protect  the 
tenant  for  life  and  the  remainder-men.  Therefore,  if  there  are 
reversionary  interests  or  rights  that  may  not  fall  in  during  the 
life  of  the  tenant  for  life,  so  that  he  can  enjoy  a  benefit  from 
them,  the  trustee  must  sell  and  convert  them  into  money,  if 
they  have  a  value  and  admit  of  conversion.^     As  the  tenant  for 

'  Ante,  §  462. 

«  Dimes  V.  Scott,  4  Russ.  195.  ^  ibij, 

*  Howe  V.  Dartmouth,  7  Ves.  150;  Williamson  v.  Williamson,  6  Paige, 
303 ;  Prendergast  v.  Prendergast,  3  H.  L.  Ca.  195 ;  Meyer  v.  Simonson, 
5  De  G.  &  8m.  726. 

*  Yates  V.  Yates,  28  Beav.  637. 

^  Howe  V.  Dartmouth,  7  Ves.  150;  Fearns  v.  Young,  9  Ves.  549; 
Dimes  V.  Scott,  4  Russ.  200 ;  ante,  §  450. 


§§  548-550.]  TRUSTEES   TO    CONVERT.  89 

life,  if  entitled  to  the  possession,  is  a  quasi  or  implied  trustee 
for  the  remainder-man,  and  is  accountable  for  the  highest  good 
faith,^  so  the  trustee  and  the  remainder-man  must  exercise  the 
like  good  faith  towards  the  tenant  for  life ;  and  if  they  join  in 
evicting  him  from  the  possession,  they  will  be  compelled  to 
make  good  the  rent,  whether  they  received  any  or  not,  and 
that  without  any  equitable  allowances.^ 

§  550.  In  Sitwell  v.  Bernard,  the  testator  directed  his  per- 
sonal estate  to  be  laid  out  in  lands  to  be  settled  upon  A.  for 
life  with  remainder  over,  and  that "  the  interest  of  his  personal  es- 
tate," meaning  interest  upon  debts  due  that  could  not  be  collected 
immediately,  "  should  be  accumulated  and  laid  out  in  lands  to 
be  settled  to  the  same  uses."  Of  course,  if  the  collections  of 
some  outstanding  debts  were  deferred  for  a  considerable  time, 
and  the  interest  accumulated  as  directed,  the  tenant  for  life 
would  lose  the  income  of  all  the  estates  to  be  purchased  with 
the  accumulated  interest.  To  ol)viate  this  hardship  upon  the 
tenant  for  life,  the  court  confined  the  accumulation  to  one  year 
from  the  testator's  death,  on  the  ground  that  one  year  was 
allowed  for  settling  estates  and  collecting  debts,  and  that,  at 
the  expiration  of  that  time,  the  trustees  should  be  presumed  to 
be  ready  to  make  the  investment  as  directed  ;  and  if  it  was  not 
made  at  that  time,  that  the  tenant  for  life  would  be  entitled  to 
the  interest  received  upon  tlie  personal  estate,  in  the  place  of 
the  income  that  he  would  receive  from  the  real  estate  if  the 
investment  was  made  at  the  end  of  one  year.^  On  the  other 
hand,  if  a  testator  devises  his  real  estate  to  be  sold,  and  the 

'  Ant ',  §  540. 

«  Kaye  v.  Powell,  1  Ves.  Jr.  408. 

^  Sitwell  V.  Bernard,  6  Ves.  5'20 ;  Entwistle  v.  IVIarkland,  and  Stuart  v. 
Bruere,  cited  6  Ves.  528,  529;  Griffith  v.  jNIorrison,  cited  1  J.  &  W.  311; 
Tucker  v.  Boswell,  5  Beav.  GO?  ;  Kilvington  v.  Gray,  2  S.  &  S.  396  ;  Parry 
V.  Warrington,  6  ]\Iad.  155;  Stair  v.  Macgill,  1  Bligh  (x.  s.),  602;  Walker 
V.  Shore,  19  Ves.  387 ;  Taylor  v.  Clark,  1  Hare,  1G7  ;  Cassamajor  v.  Vear- 
son,  8  CI.  &  Fin.  69. 


90  FIRST  year's  income.  [chap,  xyiii. 

proceeds  thereof,  and  the  rents  and  profits,  in  the  mean  time 
to  be  laid  out  in  securities  to  be  settled  on  A.  for  life,  with 
remainders  over,  the  accumulation  of  the  rents  and  profits  will 
be  allowed  for  only  one  year ;  that  is,  there  will  be  one  year 
allowed  for  the  sale  of  the  estate,  and  the  rents  and  profits  may 
accumulate  for  that  time.  If  the  investment  is  not  then  made, 
the  tenant  for  life  is  entitled  to  the  rents  and  profits,  as  if  the 
sale  and  investment  had  been  made,  and  until  it  is  made.^ 
From  the  expressions  used  by  Lord  Eldon,  in  the  case  of  Sit- 
well  V.  Bernard,  it  was  supposed  that  in  no  case  could  the 
tenant  for  life  receive  any  part  of  the  income,  where  there  was 
a  direction  to  convert  personalty  into  land,  or  land  into  per- 
sonalty ;  and  it  was  so  determined  in  two  cases,^  but  it  is  now 
settled,  that  the  tenants  for  life  shall  have  the  first  year's  in- 
come, where  there  is  no  express  direction  to  accumulate.^ 

§  551.  The  rule,  that  a  tenant  for  life  has  an  interest  in  the 
first  year's  income,  varies  according  to  the  circumstances  of 
each  case.  Mr.  Lewin'*  states  the  following  propositions  and 
distinctions,  gathered  from  the  cases:  (1.)  The  tenant  for  life 
of  a  residue  is  not  entitled  to  the  income  accruing,  during  the 
delay  allowed  for  the  payment  of  the  legacies,  on  so  much  of 
the  testator's  property  as  is  subsequently  applied  in  paying 
them.^  (2.)  If  a  testator  desires  that  his  personal  estate  shall 
be  laid  out  and  invested  either  in  government  or  real  securities 
in  trust  for  one  for  life,  with  remainders  over ;  or  in  a  purchase 
of  lands,  with  a  direction,  express  or  implied,  for  the  invest- 

'  Noel  V.  Henley,  7  Price,  241;  Vickers  v.  Scott,  3  M.  &  K.  500 ;  Vigor 
V.  Harwood,  12  Sim.  172;  Greisley  w.  Chesterfield,  13  Beav.  288;  Beauland 
».  Halliwell,  1  C.  P.  Coop.  t.  Cott.  169,  note  (a). 

2  Sitwell  17.  Bernard,  6  Ves.  520;  State  v.  HoUingworth,  3  Mad.  IGl ; 
Taylor  v.  Hibbert,  1  J.  &  W.  388. 

=»  Angerstein  v.  Martin,  T.  &  R.  238 ;  Hewitt  v.  Morris,  T.  &  R.  244  ; 
Macplierson  v.  Macpherson,  16  Jur.  847. 

/  Lewin  on  Trusts,  247,  248,  249  (5th  ed.). 

5  Holgate  V.  Jennings,  24  Beav.  623 ;  Crawley  v.  Crawley,  7  Sim.  427  ; 
Crawley  v.  Dixon,  23  Beav.  512 ;  Fletcher  v.  Stevenson,  9  Hare,  371. 


§§  550, 551.]  FIRST  year's  income.  91 

ment  thereof  in  the  mean  time  in  government  or  real  security, 
and  that  the  lands  to  be  purchased  shall  be  in  trust  for  A.  for 
life,  with  remainders  over,  —  the  income  of  the  "government 
and  real  securities,''  of  which  the  testator  was  possessed  at  the 
time  of  his  death,  these  being  the  very  investments  contem- 
plated by  his  will,  belongs  from  the  time  of  the  death  to  the 
tenant  for  life.^  (3.)  If  the  sale  and  investment,  or  conversion, 
is  made  immediately,  during  the  first  year,  the  tenant  for  life 
is  entitled  to  the  produce  of  the  property  in  the  converted  form 
"  from  the  time  of  the  conversion,"  although  the  trustee  had 
the  whole  year  to  convert  it.^  (4.)  Where,  at  the  death  of  the 
testator,  the  property  is  not  in  the  state  in  which  it  is  directed 
to  be,  the  tenant  for  life,  before  the  conversion,  is  entitled,  as 
the  court  has  decided,  not  to  the  actual  produce,  but  to  a  rea- 
sonable fruit  of  the  property,  from  the  death  of  the  testator  up 
to  the  time  of  the  conversion,  whether  made  in  the  course  of 
the  first  year  or  subsequently  ;  as,  if  personal  estate  is  directed 
to  be  laid  out  in  government  or  real  securities,  and  part  of  the 
personal  estate  consists  of  bonds,  stoclcs,  &c.,  not  being  govern- 
ment or  real  securities,  the  tenant  for  life  is  entitled  to  the 
dividends  from  the  death  of  the  testator,  or  so  much  three  per 
cent  consolidated  bank  annuities  as  such  part  of  the  personal 
estate,  not  being  government  or  real  securities,  would  have  pur- 
chased at  the  expiration  of  one  year  from  the  testator's  death.^ 
(5.)  Where  the  non-conversion  is  attended  with  any  risk  to  the 
property,  as  in  case  of  bonds,  &c.,  the  remainder-man,  whose 
interest  is  thus  imperilled,  has  a  right  to  share  in  the  extra 

'  Hewitt  w.  Morris.  T.  &  R.  241  ;  La  Torriere  v.  Bulmer,  2  Sim.  18; 
Angcrstein  v.  Martin,  T.  &  11.  232;  Caldicott  v.  Caldicott,  1  Y.  &  C.  Ch. 
337. 

^  La  Terriere  v.  Bulmer,  2  Slin.  18;  Gibson  v.  Bott,  7  Yes.  89;  Anger- 
stein  V.  Martin,  T.  &  R.  240. 

^  1  limes  V.  Scott,  4  Russ.  495;  Douglass  v.  Congreve,  1  Keen,  410; 
Taylor  I'.  Clark,  1  Hare,  161;  Morgan  v.  Morgan,  14  Beav.  72;  Holgate  v. 
Jennings,  24  Beav.  623 ;  Llewellyn's  Trust,  29  Beav.  171 ;  Hume  v.  Rich- 
ardson, 8  Jur.  (n.  s.)  686. 


92  FIRST    year's   income.  [chap.  XVIII. 

profit  of  the  annual  produce  ;  ^  but  suppose  land  to  have  yielded 
a  rental  beyond  what  would  have  been  the  annual  produce  of 
the  purchase-money,  and  there  has  been  no  depreciation,  can 
the  remainder-man  call  back  the  extra  rent  received  by  the 
tenant  for  life  ;  or  as  the  remainder-man  gets  all  that  was  ever 
intended  for  him,  viz.,  the  undepreciated  property,  may  the  ten- 
ant for  life  keep  the  full  rent?  If  not,  then  conversely,  if  the 
land  yields  no  annual  fruit,  or  less  than  what  the  purchase- 
money  would  yield,  the  tenant  for  life  should  have  a  claim 
against  the  remainder-man.^  But  if  the  tenant  for  life  is  also 
a  trustee  for  sale,  and  neglects  to  sell,  he  cannot  be  allowed  to 
put  into  his  own  pocket  the  higher  annual  produce  which  has 
arisen  "  from  his  own  "  laches ;  for  no  trustee  can  derive  a 
profit  from  the  exercise  or  non-exercise  of  his  own  office.^ 
(6.)  In  Gibson  v.  Bott,"*  leaseholds  from  a  defect  of  title  could 
not  be  sold,  and  the  court  gave  the  tenant  for  life  interest  at 
four  per  cent  on  the  value  from  the  death  of  the  testator.  It 
does  not  appear  from  the  report  at  what  time  the  value  was  to 
be  taken ;  but  according  to  recent  cases  it  should  have  been 
ascertained  at  the  expiration  of  one  year  from  the  testator's 
death.^  (7.)  If  a  testator's  estate  comprises  funds  not  imme- 
diately convertible,  but  receivable  by  instalments,  such  as  a  tes- 
tator's share  in  a  partnership,  assessed  at  a  certain  sum  and 
payable  by  instalments,  carrying  interest  at  five  per  cent,  the 
tenant  for  life  is  allowed  four  per  cent,  from  the  death  of  the 
testator,  on  the  value  taken  at  the  expiration  of  one  year  from 
the  testator's  death.^  (8.)  If  it  appears  from  the  terms  of  the 
will,  that  the  testator  intended  to  give  his  trustees  a  discretion 
as  to  the  time  of  conversion,  which  discretion  has  been  fairly 

'  Dimes  V.  Scott,  4  Russ.  495 ;  Stroud  v.  Gwyer,  28  Beav.  130. 

2  Yates  V.  Yates,  28  Beav.  637. 

3  Wightwick  V.  Lord,  6  H.  L.  Ca.  217.  *  7  Ves.  89. 

*  Caldicott  V.  Caldicott,  1  Y.  &  C.  Ch.  312 ;  Sutherland  v.  Cook,  1  Coll. 
503. 

®  Llewellyn's  Trust,  29  Beav.  171;  Meyer  v.  Simonson,  5  De  G.  &  Sm. 
723. 


§  551.]  FIRST  year's  inxome.  93 

exercised,  and  that  the  tenant  for  hfe  was  to  have  the  actual 
income  until  conversion,  the  case  must  be  governed  by  the 
testator's  intention,  and  not  by  the  general  rule.^ 

^  Mackie  v.  Mackie,  5  Hare,  70;  Wrey  v.  Smith,  14  Sim.  202;  Sparling 
V.  Parker,  9  Beav.  52-i  ;  Johnstone  v.  Moore,  -t  Jur.  (x.  s.)  86(3;  Murray 
t?.  Glasse,  17  Jur.  816. 

Mr.  Hill  says,  that  •'  the  interest  which  the  tenant  for  life  will  take  dur- 
ing the   first  year  after  the  testator's  death  is  yet  an  unsettled  question. 
This  question  admits  of  four  possible  solutions,  and  the  decisions  of  very 
eminent  judges  may  be  urged  in  su])port  of  each  :   (1.)  Fiist,  the  tenant  for 
life  may  be  entitled  to  nothing  until  the  expiration  of  a  twelvemonth  from 
the  testator''*  death,  according  to  the  opinion  of  Sir  John  Leach  in  Scott  v. 
Hollingworth,  3  Mad.   161;  Vickcrs  v.  Scott,  3  M.  &  K.  o09,  and  of  Sir 
Thos.  Plunier  in  Taylor  v.  Hibbert,  1  J.  &  W.  308  (see  Tucker  v.  Bos- 
well,  5  Beav.  607)  ;  and  the  inconve  in  the  mean  time  is  to  be  added  to  and 
form  a  part  of  the    capital   of  the    residue.     Both    those    learned  judges 
appear  to  have  assumed,  that  this  opinion  was  in  accordance  with  the  estab- 
lished rule  of  the  court,  and  Sir  Thos.  Plumer  treats  this  general  rule  as 
having  been  so  settled  by  Lord  Eldon  in  the  case  of  Sitwell  v.  Bernard, 
6  Ves.  522.     However,  in  the  subsequent  case  of  Angerstein  v.   Martin, 
T.  &  R.  238,  and  see  Hewitt  v.  Morris,  T.  &  11.  244,  that  great  judge  him- 
self disclaimed  any  intention  of  establishing  any  such  general  rule  by  his 
decision  in   Sitwell  i'.   Bernard,  6  Ves.  .522  ;  a  decision  which  he  stated  to 
have  been  founded  on  the  direction  to  accumulate,  Avhich  formed  an  ingre- 
dient in  that  case,  and  his  lordship's  further  observations  on  the  decisions  in 
Sitwell  V,  Bernard  and  Scott  v.  Hollingworth  have  materially  weakened  the 
authority  of  those  cases,  if  indeed  they  do  not  expressly  overrule  them. 
The  case  of  Vickers  v.  Scott,  3  M.  &  K.  500,  arose  upon  real  estate,  which 
was  directed  to  be  sold,  and  the  point  in  question  does  not  seem  to  have 
been  much  argued  in  that  case.      (2.)   According  to  the  decision  of  A.  Hart, 
V.  C,  in  La  Terriere  v.  Buhner,  2  Sim.  18,  the  cestui  que  trust  for  life  dur- 
ing the  first  year  after  the  testator's  death  will  take  the  income  of  such  parts 
of  the  estate  as  are  properly  invested  at  the  testator's  death,  or  may  become 
so  invested  during  that  year.     Lord  Eldon's  decisions  in  Gibson  i'.  Bott,  7 
Ves.  95;  Hewitt  v.  Morris,  T.  &  II.  241,  are  also  in  favor  of  this  doctrine, 
which  is  also  strongly    supported   by  the  observations  of  Sir  J.   Wigram, 
V.  C,  in  the  recent  case  of  Taylor  v.  Clark,  1  Hare,  173.     See  also  Caldicott 
V.  Caldicott,  1  N.  C.  C.  312.     (3.)  The  tenant  for  life  may  be  entitled  to 
the  income  arising  from  the  property  in  its  existing  state  during  the  first 
year  from  the  testator's  death.     And  this  view  of  the  law  is  supported  by 
Lord  Eldon's  decision  in  the  case  of  Angerstein  v.  Martin,  T.  &  R.  232, 
and  that  of  Lord  Langdale,  M.  R.,  in  Douglass  v.  Congreve,  I    Keen,  410. 
It  has  been  observed  by  Vicc-Chanccllor  Wigram,  1    Hare,  172,  1  N.  C.  C. 
318,  that  it  might  be  a  question  whether  Lord  Eldon's  decree  in  Angerstein 


94  REPAIRS    AND    WASTE.  [CHAP.  XVIII. 

§  552.  The  liability  of  the  equitable  tenant  for  life,  in 
respect  to  repairs  and  waste,  is  substantially  the  same  as  the 
liability  of  a  legal  tenant  for  life,^  except  that  the  trustee  can- 

V.  Martin  was  intended  to  impeach  the  law  as  laid  down  in  La  Terriere  v. 
Bulmer ;  and  even  if  such  were  Lord  Eldon's  intentions,  it  must  have  been 
considered  as  overruled  in  Lord  Lyndhurst's  decision  in  Dimes  v.  Scott, 
4  Russ.  209.  The  later  case  of  Douglass  v.  Congreve,  1  Keen,  410,  which 
is  clearly  inconsistent  with  Dimes  v.  Scott,  was  also  strongly  questioned  by 
Vicc-Chancellor  Wigram  in  the  recent  case  of  Taylor  v.  Clark,  1  Hare,  172, 
in  which  all  the  authorities  on  this  subject  are  collected  and  reviewed,  and 
his  honor's  decision  in  which  he  followed  Dimes  v.  Scott,  in  preference  to 
Douglass  V.  Congreve,  is  directly  at  variance  with  the  latter  case.  (4.)  Ac- 
cording to  the  determination  of  Lord  Lyndhurst  in  Dimes  v.  Scott,  the 
tenant  lor  life  will  take,  not  the  interest  actually  arising  from  the  property 
during  the  first  year  after  the  testator's  death,  but  the  amount  of  the  divi- 
dends on  so  much  three  per  cent  stOL-k  as  would  have  been  produced  by  the 
conversion  of  the  property  at  the  end  of  that  year.  And  this  solution  of 
the  question  has  recently  been  adopted  by  Vice-Chanccllor  Wigram  in  the 
case  of  Taylor  v.  Clark,  1  Hare,.  1(51."     Hill  on  Trustees,  pp.  388,  389. 

Mr.  Hill  further  observes,  "  that,  in  this  conflict  of  authority,  the  ques- 
tion can  be  put  to  rest  only  by  the  decision  of  the  court  of  the  highest 
authority.  And  that  in  the  mean  time  the  fourth  alternative,  as  established 
by  Lord  Chancellor  Lyndhurst  in  Dimes  v.  Scott,  4  Russ.  299,  and  adopted 
in  Taylor  v.  Clark,  1  Hare,  172,  must  be  considered  as  carrying  with  it  the 
greatest  authority  in  its  favor."  Mr.  Spence,  Eq.  Jur.  564,  fully  discusses 
the  authorities,  and  approves  of  Dimes  v.  Scott.  That  case  was  also  fol- 
lowed in  Morgan  v.  Morgan,  14  Beav.  72,  in  which  the  case  of  Douglass  v. 
Congreve  was  overruled.  Holgate  v.  Jennings,  24  Beav.  623 ;  Re  Llewel- 
lyn's Trust,  29  Beav.  171;  Hume  v.  Richardson,  8  Jur.  (n.  s.)  686,  fol- 
lowed Dimes  v.  Scott.  And  see  Robinson  v.  Robinson,  1  De  G.,  M.  &  G. 
247  ;  Scholefern  v.  Redfen,  2  Dr.  &  Sui.  173;  32  L.  J.  Ch.  627;  Meyer  v. 
Simonson,  5  De  G.  &  Sm.  726. 

In  the  United  States,  the  question  has  not  been  largely  discussed,  but  in 
Evans  v.  Iglehart,  6  G.  »&  J.  191,  and  Williamson  v.  Williamson,  6  Paige, 
303,  the  court  assumed  that  the  law  was  correctly  stated  in  the  third  alter- 
native, or  in  Angerstein  v.  Martin,  2  Sim.  18.  In  Massachusetts,  the  matter 
is  regulated  by  statute,  that  the  tenant  for  life  shall  be  entitled  to  the  income 
for  the  fu'jt  year  upon  the  fund  given  for  his  use.  Gen.  Stat.  c.  97,  §  23; 
Sohier  v.  Eldredge,  103  Mass.  351;  Sargent  v.  Sargent,  103  INIass.  297; 
Brown  v.  Gellaty,  L.  R.  2  Ch.  751 ;  Lamb  v.  Lamb,  11  Pick.  371 ;  Minot 
V,  Amory,  2  Cush.  377,  388;  Lovering  v.  Minot,  1  Cush.  157. 

'  Powis  V.  Blagrave,  4  De  G.,  M.  &  G.  458,  and  cases  cited ;  Harnett  v. 
Maitland,  16  M.  &  W.  257. 


§  552.]  REPAIRS.  95 

not  interfere  with  the  possession  of  the  equitable  tenant  for 
life  if  he  neglects  to  repair ;  nor  for  permissive  waste,^  if  there 
is  nothing  in  the  settlement  that  gives  him  the  management  or 
control  of  the  estate.  A  legal  tenant  for  life  may  cut  timber 
for  repairs,^  though  he  cannot  cut  timber  for  sale,  or  to  pay  for 
repairs.^  So  a  trustee  may  cut  timber  for  repairs,  if  the  tenant 
for  life  will  furnish  the  means  for  using  the  timber  in  repair- 
ing ;  for  the  trustee  can  sell  no  timber  for  repairs,  nor  can  he 
use  any  other  trust  funds  for  the  purpose,  unless  specially 
authorized  by  the  instrument  of  trust.  Nor  can  the  trustees 
raise  any  sum  out  of,  or  make  any  charge  upon,  the  corpus  of 
the  estate  itself  for  repairs,  however  the  want  of  such  repairs 
may  be  occasioned.'*  The  equitable  tenant  for  life  must  defray 
the  expenses  of  such  repairs  out  of  his  own  income,  or  the 
trustee  must  defray  them  out  of  the  interest  of  the  tenant  for 
life.  The  repairs  of  the  tenant  for  life  are  his  own  voluntary 
act;  and,  however  substantial  and  beneficial  to  the  estate  and 
the  remainder-man,  he  can  make  no  claim  for  them  upon  the 
inheritance.  Nor  would  a  court,  upon  his  application,  direct 
any  repairs  to  be  made  at  the  expense  of  the  remainder-man  ;  ^ 
though  it  was  said  in  one  case  that  the  rule  might  not  be  with- 

1  Fowls  V.  Blagrave,  Kay,  495;  4  De  G.,  I\I.  &  G.  448;  Re  Skingley, 
3  M.  &  G.  221;  Gregg  v.  Coates,  23  Buav.  33. 

*  Co.  Lit.  54  b. 

*  Co.  Lit.  53  b ;  Gower  v.  Eyre,  G.  Coop.  156 ;  Marlborough  v.  St. 
John,  5  De  G.  &  Sm.  181. 

*  Bostock  V.  Blakeney,  2  Bro.  Ch.  653 ;  Ilibbert  r.  Cooke,  1  S.  &  S. 
552;  Nairn  v.  Majoribanks,  3  Russ.  582 ;  Caldicott  v.  Brown,  2  Hare,  144 ; 
Thurston  u.  Dickinson,  2  Rich.  Ecj.  317;  Cogswell  v.  Cogswell,  2  Edw. 
Ch.  231;  Jones  v.  Dawson,  19  Ala.  672;  Thurston  v.  Thurston,  6  R.  I. 
296;  Martin's  App.  23  Penn.  St.  438.  In  this  case  it  was  doubted  if  it 
was  constitutional  for  the  legislature  to  authorize  such  an  expenditure  by 
the  trustee. 

4  Amory  v.  Lowell,  104  Mass.  265;  Hibbert  v.  Cooke,  1  S.  «&  S.  552; 
Caldicott  V.  Brown,  2  Ilare,  144;  Bostock  v.  Blakeney,  2  Bro.  Ch.  653; 
Hanier  v.  Tilsley,  Johns.  (Eng.)  486;  Dent  «.  Dent,  30  Beav.  363;  Nairn 
V.  Majoribanks,  3  Russ.  5S2 ;  Corbett  v.  Laurens,  5  Rich.  Eq.  301 ;  Shar- 
shaw  V.  Gibbs,  1  Kay,  333. 


96  REPAIRS.  [chap.  XVIII. 

out  exception  ;  as  where  an  estate  was  settled  to  certain  uses, 
and  a  fund  was  directed  to  be  applied  to  the  purchase  of  an 
estate  to  be  settled  to  the  same  uses,  it  might  be  more  bene- 
ficial to  the  remainder-man  that  part  of  the  fund  should  be 
applied  to  the  repair  and  preservation  of  the  estate  already 
settled.^  It  would  be  an  extraordinary  case,  however,  to  jus- 
tify such  a  proceeding.2  But  where  trustees  are  directed  to 
purchase,  or  invest  in  real  estate,  they  may  put  such  estate  in 
tenantable  repair,  and  the  expense  of  such  repair  will  be 
chargeable  to  the  trust  fund  as  part  of  the  purchase-money.^ 
A  testator  may  be  under  such  obligations  in  his  leases  or  lease- 
holds which  he  devises  for  life  to  one,  with  remainder  over, 
that  the  trustees  must  make  repairs,  and  charge  the  expense  to 
the  corpus  of  the  estate.*  So  it  has  been  held,  that  where 
a  tenant  for  life  makes  large  and  permanent  repairs,  and  sub- 
sequently the  trustee  sells  the  estate  for  the  accommodation  of 
all  parties,  the  tenant  for  life  may  have  a  fair  proportion  for 
his  repairs  out  of  the  corpus  of  the  proceeds  of  the  sale.°  And 
in  one  case  the  court  ordered  the  trustee  to  apply  a  sum  from 
the  personal  estate  to  the  construction  of  warehouses,  and  pro- 
vided for  a  reservation  from  the  rents  of  interest  upon  the  sum 
expended  during  the  continuance  of  the  life-estate.^ 

§  553.  Both  the  equitable  tenant  for  life  and  the  remainder- 
man have  an  insurable  interest  in  the  trust  estate  ;  and  if  one 
insures  his  own  interest  in  the  buildings,  and  they  are  burned, 
neither  can  call  upon  the  other  for  any  part  of  the  insurance 
money.     The  trustee  also  has  an  insurable  interest  in  the  build- 

1  Caldicott  V.  Brown,  2  Hare,  145 ;  Re  Barrington's  Est.  1  John.  & 
Hem.  142. 

2  Dunne  v.  Dunne,  3  Stn.  &  Gif.  22;  7  De  G.,  M.  &  G.  207;  Dent  v. 
Dent,  30  Beav.  363. 

^  Parsons  v.  Winslow,  16  Mass.  361. 

*  Harris  v.  Payner,  1  Drew.  174.  And  see  a  distinction  in  Hickling  v. 
Boyer,  1  De  G.,  M.  &  G.  762. 

*  Gambril  v.  Gambril,  3  Md.  Ch.  259. 
^  Cogswell  V.  Cogswell,  2  Edw.  231. 


§§  552-554.]  INSURANCE   TAXES,    CHARGES.  97 

ings  upon  the  trust  estate  ;  and,  if  he  insures,  and  the  buildings 
are  entirely  destroyed  by  fire,  the  insurance  money  received  is 
so  far  a  conversion  of  the  property  into  personalty  that  the 
trustee  caiinot  rebuild,  unless  he  is  specially  directed  by  the 
instrument  of  trust  to  do  so  ;  but  the  money  so  received  must 
remain  personal  property,  and  the  tenant  for  life  and  the 
remainder-man  will  receive  their  respective  rights  and  interests 
according  to  the  terms  of  the  settlement.^  If  a  building  is  par- 
tially burned  or  injured,  and  the  trustees  have  an  insurance 
policy,  they  should  apply  the  money  to  the  repair  of  the  build- 
ing.2  Of  course  the  repair  of  trust  property  is  frequently  the 
subject  of  express  provisions  in  wills  and  settlements,  and 
trustees  must  be  governed  by  the  directions  contained  in  the 
instrument  of  trust.  So  there  are  frequent  directions  in  instru- 
ments of  trust  respecting  insurance  of  property,  and  the  use 
and  application  of  the  insurance  money  in  case  of  loss  or  dam- 
age by  fire.  Trustees  will  be  governed  by  such  directions  in 
all  cases.  In  Pennsylvania,  there  are  express  enactments  by 
which  repairs  can  be  made  upon  trust  property  at  the  mutual 
expense  of  the  tenant  for  life  and  the  remainder-man ;  the 
manner  of  the  repairs  and  the  proportion  of  the  expenses  are 
to  be  determined  by  a  court  upon  the  application  of  any  party 
in  interest.^ 

§  554.  It  is  the  duty  of  the  trustee  to  see  that  the  equitable 
tenant  for  life,  in  rightful  possession  of  the  estate,  pays  all 
rates  and  taxes  ;  but  if  the  trustee  pays  them  he  cannot  charge 
them  in  his  account  with  other  parties  in  interest.*     If,  how- 

^  See  ante,  §  487 ;  Graham  v.  Roberts,  8  Ii-ed.  Eq.  99 ;  Ilaxall  i".  Ship- 
pen,  10  Leigh,  536  ;  Lerow  v.  Wilmarth,  9  Allen,  382. 

2  Brough  V.  Higgins,  9  Grat.  408. 

8  Act  May  3,  1855,  §  3 ;  Pardon's  Dig.  973. 

■•  Amory  v.  Lowell,  106  Mass.  2C5 ;  Fountaine  v.  Pellett,  1  Ves.  Jr. 
342;  Tiipper  r.  Fuller,  7  Rich.  Eq.  170;  Cairns  v.  Chabert,  2  Edw.  Ch. 
312;  Jones  v.  Dawson,  19  Ala.  672;  Varney  r.  Stevens,  22  Me.  331.  In 
case  bf  a  widow  being  tenant  for  life,  one-third  of  the  ta.Kes  and  repairs 

VOL.  II.  7 


98  INSURANCE   TAXES,    CHARGES.  [CHAP.  XVIII. 

ever,  an  assessment  is  made  against  the  estate  for  something  in 
the  nature  of  permanent  improvement  or  betterment  of  the 
whole  estate,  the  assessment  may  be  ratably  and  equitably 
divided  between  the  tenant  for  life  and  the  remainder-man.^ 
So  the  equitable  tenant  for  life  must  pay  the  interest  upon  all 
incumbrances  upon  the  estate,^  to  the  extent  of  the  rents  and 
profits.^  If  a  tenant  pays  off,  and  takes  an  assignment  of  an 
incumbrance  to  himself,  his  representatives  may  claim  from 
the  remainder-man  the  difference  between  the  rents  and  profits 
of  the  estate  and  the  interest  upon  the  incumbrance,  if  he  noti- 
fies the  remainder-man  that  the  rents  and  profits  are  insufficient 
to  pay  the  interest;'^  in  such  cases,  the  tenant  for  life  cannot 
be  charged  with  wilful  default,  like  a  mortgagee  in  possession, 
except  upon  some  very  peculiar  ground.^  A  second  tenant  for 
life  is  not  under  any  obligation  to  apply  the  rents  and  profits 
accruing  to  him  to  pay  off  arrears  of  interest  which  accrued 
during  the  life  of  the  preceding  tenant  for  life ;  l)ut  such  arrears 
become,  as  between  the  second  tenant  for  life  and  the  remain- 
der-man, a  charge  upon  the  inheritance.^  The  expenses  of 
cultivating  a  farm  or  plantation,  or  of  running  a  manufacturing 
establishment,  must  be  wholly  defrayed  by  the  tenant  for  life, 
or  the  person  entitled  to  the  income  arising  from  such  opera- 
tions.''    If  the  land  under  incumbrance  is  sold,  the  proceeds 

were  charged  to  her,  Cochran  v.  Cochran,  2  Des.  521 ;    but  no  general 
principle  can  be  stated  upon  this  case. 

^  Plympton  v.  Boston  Dispensary,  106  Mass.  546. 

*  Jones  V.  Sherrard,  2  Dev.  &  Bat.  Eq.  187 ;  Hinves  r.  Hinves,  3  Hare, 
609;  Caulfield  v.  Maguire,  2  Jo.  &  La.  141 ;  Cogswell  v.  Cogswell,  2  Edw. 
Ch.  231 ;  4  Kent,  74. 

3  Kensington  v.  Bouverie,  7  De  G.,  M.  &  G.  134;  24  L.  J.  Ch.  442. 

*  Ibid.  ;  Kensington  v.  Bouverie,  7  H.  L.  Ca.  557. 

^  Ibid. ;  see  Campbell  v.  Camfjbell,  27  Mich.  454;  Swaine  v.  Ferine,  5 
John.  Ch.  482  ;  Van  Vronker  v.  Eastman,  7  Met.  157. 

6  Sharshaw  v.  Gibbs,  1  Kay,  333;  Penrhyn  v.  Hughes,  5  Ves.  99, 
appears  to  be  overruled. 

''  Tupper  I'.  Fuller,  7  Rich.  Eq.  170 ;  Jones  v.  Dawson,  19  Ala.  672 ; 
North  Amer.  Coal  Co.  v.  Dyett,  7  Paige,  9. 


§§  554,  555.]  CHARGES  —  INSOLVENCY.  99 

may  be  invested,  and  the  tenant  for  life  may  take  the  income 
for  life,  or  the  net  proceeds  may  be  divided  according  to  the 
annuity  tables.  The  tables,  however,  are  not  to  be  taken  abso- 
lutely; for  reference  must  be  had  to  the  health  of  the  tenant 
for  life,  and  also  to  the  condition  of  the  land  and  its  annual 
income,  and  whether  the  land  is  so  situated  that  the  price  is 
rising  or  falling,  and  whether  it  can  be  easily  improved.^ 

§  555.  If  an  equitable  tenant  for  life  becomes  bankrupt  or 
insolvent,  all  his  interest  goes  to  his  assignees,  and  the  trustee 
mast  hold  it  subject  to  their  disposition  ;  ^  unless  the  property 
is  so  given  that  it  goes  over  upon  the  bankruptcy  of  the  cestui 
que  trust.  Although  a  condition  restraining  the  alienation  of 
an  equitable  estate  is  void,  as  in  case  of  a  legal  estate,^  yet  a 
gift  made  in  such  form  that  it  is  to  go  over  upon  alienation  or 
bankruptcy  of  the  cestui  que  trust  is  good.*  A  general  provision 
that  a  cestui  que  trust  shall  not  alienate  his  interest,  or  that  it 
shall  not  go  to  his  creditors  or  to  his  assignees,  if  the  interest 
is  an  absolute  one,  is  void,  as  contrary  to  the  rule  of  law,  that 
when  an  estate  is  given  to  a  man,  no  restrictions  inconsistent 
with  the  gift  are  valid.°     But  if  the  limitations  are  interwoven 

'  Niemcewicz  v.  Gahn,  3  Paige,  652 ;  Atkins  v.  Kron,  8  Ired.  Eq.  1 ;  Gam- 
bril  V.  Gambril,  3  Md.  Ch.  259 ;  Chesson  v.  Chesson,  8  Ired.  Eq.  141 ;  Wil- 
liams' Case,  3  Bland,  186  ;  Jones  v.  Sherrard,  2  Dev.  &  Bat.  189  ;  4  Kent,  74. 

2  Ante,  §  386 ;  Wells  v.  Ely,  3  Stockt.  172. 

'  Rockford  V.  Hackman,  9  Hare,  475 ;  10  Eng.  L.  &  Eq.  67 ;  Coke, 
Lit.  223  a. 

4  Dommet  v.  Bedford,  3  Ves.  149;  Cooper  v.  Wyatt,'5  Mad.  482;  Shee 
V.  Hale,  13  Ves.  404 ;  Brandon  v.  Aston,  2  N.  C.  C,  24 ;  Twopenny  v. 
Peyton,  10  Sim.  487;  Page  v.  Way,  2  Beav.  20;  Lewes  v.  Lewes,  6  Sim. 
304;  Rockford  v.  Hackman,  9  Hare,  475 ;  Dickson's  Trust,  1  Sim.  (n.  s.)  37 ; 
Ex  parte  Baddam,  2  De  G.,  F.  &  J.  625;  Muggridge's  Trusts,  John. 
(Eng.)  625 ;  Dorsett  v.  Dorsett,  31  L.  J.  Ch.  122 ;  Joel  v.  Mills,  3  K.  &  J. 
458  ;  In  re  Stultz,  17  Jur.  615. 

^  Hallett  V.  Thompson,  5  Paige,  583 ;  Heath  v.  Bishop,  4  Rich.  Eq.  46 ; 
Dick  V.  Pitchford,  1  Dev.  &  Bat.  480 ;  Rider  v.  Mason,  4  Sand.  Ch.  352 ; 
Coke,  Lit.  223  a ;  Blackstone  Bank  y.  Davis,  21  Pick.  43 ;  Bramhall  r. 
Ferris,  14  N.  Y.  44;  Etches  v.  Etches,  3  Drew.  441. 


100  BANKRUPTCY.  [CIIAP.  XVIIT. 

into  the  gift  itself,  they  are  valid  ;  as  if  an  estate  is  given  to  A. 
until  he  becomes  bankrupt,  the  limitation  is  part  of  the  gift, 
and  the  estate  will  go  over  upon  the  happening  of  the  event.^ 
If,  however,  any  interest  remains  in  the  cestui  que  trust  for 
life,  it  must  go  to  his  assignees.^  If  it  is  in  the  discretion  of 
the  trustees  whether  the  eestui  que  trust  shall  have  an  interest 
or  not,  the  assignees  will  take  nothing  ;  ^  but  if  the  trustees 
have  exercised  their  discretion,  the  assignees  will  take  the 
interest  conferred  by  it.*  If  the  limitation  is  to  take  effect 
only  upon  alienation  by  the  cestui  que  trust,  it  will  not  take 
effect  upon  bankruptcy,  and  the  assignees  will  be  entitled.^ 
The  law  does  not  permit  a  man  to  settle  his  property  on  him- 
self, with  a  limitation  over  in  case  of  bankruptcy.^  If  the 
income  is  given  to  the  cestui  que  trust  for  a  particular  purpose 

1  Stagg  V.  Beekraan,  2  Edw.  Ch.  89 ;  Ashurst  v.  Given,  5  W.  &  S.  323 ; 
Vaux  V.  Parke,  7  W.  »&  S.  19 ;  Eyrick  v.  Hetrick,  13  Penn.  St.  491 ;  Girard 
Ins.  Co.  V.  Chambers,  46  Penn.  St.  485 ;  Norris  v.  Johnston,  5  Barr,  289 ; 
Fisher  v.  Taylor,  2  Rovvle,  33 ;  Shee  v.  Hale,  13  Ves.  404 ;  Cooper  v. 
Wyatt,  5  Mad.  482;  Ex  parte  Oxley,  1  B.  «&  B.  257;  Sharpe  v.  Cossent, 
2  Beav.  470;  Yarnold  v.  Moorhouse,  1  R.  &  M.  364;  Lockyer  v.  Savage, 
2  Strange,  947  ;  Stevens  v.  James,  4  [Sim.  499 ;  Kearsly  v.  Woodcock,  3 
Hare,  185 ;  Churclihill  v.  Marks,  1  Coll.  441 ;  Large's  Case,  2  Leon.  82. 
As  to  other  limitations,  see  Grace  v.  Webb,  2  Phil.  701  ;  Lloyd  v.  Lloyd, 
2  Sim.  (n.  s.)  255 ;  Heath  v.  Lears,  1  Eq.  R.  55 ;  Potts  v.  Richards,  24 
L.  J.  Ch.  488 ;  Hooper  v.  Dundass,  10  Barr,  75  ;  Commonwealth  v.  Stauffer, 
10  Barr,  350;  Maddox  v.  Maddox,  11  Grat.  804. 

^  Rippon  V.  Norton,  2  Beav.  63;  Younghusband  v.  Gisborne,  1  Coll. 
N.  C.  C.  400;  Piercy  v.  Roberts,  1  M.  &  K.  4;  Lord  v.  Bunn,  2  N.  C.  C. 
98;  Green  v.  Spicer,  1  R.  &  M.  395;  Snowden  v.  Dales,  6  Sim.  524; 
Rockford  v.  Haekman,  9  Hare,  475. 

3  Godden  v.  Crowhurst,  10  Sim.  642 ;  Kearsley  v.  Woodcock,  3  Hare, 
185;  Lord  v.  Bunn,  2  N.  C.  C.  98;  Twopenny  v.  Peyton,  10  Sim.  487;  1 
Coll.  Ch.  400;  10  Jur.  419. 

*  Ibid. 

6  Lear  v.  Leggett,  2  Sim.  479 ;  1  K.  &  M.  690;  Whitfield  v.  Pricket,  2 
Keen,  608;  Wilkinson  v.  Wilkinson,  G.  Coop.  259;  3  Swans.  528. 

6  Braman  v.  Stiles,  2  Pick.  463;  Mackason's  App.  22  Penn.  St.  330; 
Pope  V.  Elliott,  8  B.  Mon.  56  ;  Graff  v.  Bonnett,  31  N.  Y.  19 ;  Higgin- 
bottara  V.  Holme,  19  Ves.  88 ;  Ex  parte  Hill,  1  Cooke,  Bank.  Law,  291 ; 
Murphy  v.  Abraham,  15  Ir.  Eq.  371 ;  In  re  Murphy,  1  Sch.  &  L.  44. 


§§555,556.]  APPORTIONMENT.  101 

which  would  be  defeated,  the  property  interest  may  not  go  to 
the  assignees.^ 

§  556.  At  common  law  rent  could  not  be  apportioned  ;  and, 
if  a  tenant  for  life  died  near  the  end  of  a  quarter,  his  represen- 
tatives could  receive  no  part  of  the  rent  for  the  term.  Statutes 
have  now  changed  that  rule  in  England  ;  ^  and  there  are  stat- 
utes in  many  of  the  United  States  making  rent  apportionable.^ 
In  States  where  there  are  such  statutes,  the  trustees  must  pay 
so  much  of  the  rent  as  accrued  before  the  death  of  the  tenant 
for  life  to  his  representatives,  and  the  balance  to  the  remainder- 
man.'* But  an  annuity  to  a  tenant  for  life  is  not  apportionable  ; 
and,  if  the  tenant  dies  within  three  days  of  the  day  of  payment, 
his  representatives  are  not  entitled  to  any  proportion  of  the 
annuity.^  But  where  an  annuity  is  given  to  a  widow  in  lieu  of 
dower,  or  for  maintenance  of  an  infant,  or  for  the  separate 
maintenance  of  a  married  woman,  an  apportionment  is  made 
on  the  ground  that  such  annuity  is  necessary  for  support  till 
the  death  of  the  annuitant.^  Dividends  upon  shares  in  corpo- 
rations and  upon  stocks  are  not  apportionable,  and  nothing  is 
earned  for  the  shareholders  until  the  dividends  are  declared.' 

>  See  ante,  §§386,  386  a,  386  b,  387,  388. 

«  11  Geo.  II.  C.19;  4  Wm.  IV.  c.  22;  St.  Aubin  v.  St.  Aubin,  1  Dr.  & 
Sm.  611 ;  Longworth's  Est.  23  L.  J.  Ch.  104. 

^  3  Kent,  Com.  471 ;  3  Green.  Cruise,  Dig.  117,  note. 

*  Price  V.  Pickett,  21  Ala.  741. 

*  Wiggin  V.  Swett,  6  Met.  194;  Tracy  v.  Strong,  2  Conn.  659;  Earp's 
Will,  1  Pars.  Eq.  468;  Mannings  v.  Randolph,  1  Southard,  144;  Waring 
V.  Purcell,  1  Hill,  Eq.  199 ;  Gheen  v.  Osborn,  17  S.  &  R.  171 ;  McLemore 
V.  Goode,  Harp.  Eq.  275. 

«  Hay  V.  Palmer,  2  P.  Wms.  581 ;  Pearly  v.  Smith,  3  Atk.  260 ;  Howell 
v.  Hanforth,  2  Blackstone,  R.  1016;  Gheen  v.  Osborn,  17  S.  &  R.  171. 
But  see  Tracy  v.  Strong,  2  Conn.  659;  Fisher  v.  Fisher,  4  Am.  Law  Jour. 
(n.  s.)  539. 

'  Ante,  §  545  n. ;  Earp's  Will,  1  Pars.  Eq.  168;  28  Penn.  St.  368 ;  Wil- 
son V.  Ilarman,  2  Ves.  672 ;  Rashleigh  v.  Master,  3  Bro.  Ch.  99.  But  see 
Ex  parte  Rutledge,  Harp.  Eq.  65  ;  Foote's  App.  22  Pick.  299 ;  Moseley  v. 
Eastern  R.R.  Co.  43  N.  H.  558;  Granger  v.  Bassett,  98  Mass.  462;  John- 


102  APPORTIONMENT.  [CHAP.  XVIII. 

But  interest  money  upon  notes,  bonds,  mortgages,  and  similar 
securities,  accrues  from  day  to  day,  although  it  is  not  payable 
until  a  fixed  day  ;  it  is  therefore  apportionable,  and  trustees 
must  pay  the  proportion  accruing  during  the  life  of  the  tenant 
for  life  to  his  representatives.^  In  Massachusetts,  annuities, 
rent,  interest,  and  income  are  made  apportionable  in  all  cases 
by  statute,  unless  the  instrument  of  trust  manifests  a  different 
intention.2 

§  556  a.  Where  a  trustee  died  largely  indebted  to  his  trust 
estate  by  a  breach  of  the  trust,  the  income  of  which  trust  estate 
was  payable  to  a  tenant  for  life,  and  the  principal  sum  went 
over,  and,  several  years  after  the  trustee's  death,  a  compromise 
was  effected,  by  which  a  part  of  the  original  sum  was  received, 
it  was  held  that,  as  between  the  tenant  for  life  and  the  remain- 
der-man, the  sum  paid  was  to  be  treated  as  composed  of  a 
principal  debt  due  at  the  date  of  the  transaction  out  of  which 
the  claim  originated,  or  the  date  of  the  breach  of  the  trust,  and 
of  interest  from  that  day  up  to  the  day  of  the  testator's  death, 
and  of  interest  upon  said  aggregate  of  principal  and  interest 
from  the  testator's  death  to  the  day  of  settlement  and  payment ; 
and  that  the  principal  sum  thus  ascertained,  and  the  interest 
thereon  up  to  the  testator's  death,  were  chargeable  against  the 
corpus  of  the  trust  fund,  and  the  interest  since  the  testator's 
death  was  to  be  charged  as  income.^  The  administrator  of  a 
tenant  for  life  can  maintain  a  bill  for  an  account  against  the 
trustee  for  income  accruing  before  the  death  of  the  tenant.'* 

son  V.  Bridgewater,  14  Gray,  274 ;  Crawford  v.  North  Eastern  Raihv.  3  K. 
&  J.  744;  Coleman  v.  Columbia  Oil  Co.  51  Penn.  St.  74. 

'  Earp's  Will,  1  Pars.  Eq.  168 ;  28  Penn.  St.  368 ;  Sweigart  v.  Berks, 
8  S.  &  R.  299 ;  Roger's  Trust,  1  Dr.  &  Sm.  611. 

2  Gen.  Stat.  c.  97,  §  24;  Sohier  v.  Eldredge,  103  Mass.  345. 

3  Maclaren  v.  Stainton,  L.  R.  4  Eq.  448;  L.  R.  11  Eq.  382;  Turner  v. 
Newport,  2  Phil.  14;  Cox  w.  Cox,  L.  R.  8  Eq.  343;  In  re  Grabowski's 
Settlement,  L.  R.  6  Eq.  12. 

*  Brown  v.  Hicks,  30  Ga.  777. 


§§  556-557.]       PAYMENT   OF    DEBTS    UNDER   A   WILL.  lOi 


CHAPTER   XIX. 

TRUSTS    UNDER    A    WILL    FOR    THE    PAYMENT    OF    DEBTS  ;    FOR   THE 
PAYMENT    OF    LEGACIES  ;    AND    FOR    RAISING   PORTIONS. 

§  557.  Payment  of  testator's  debts  at  common  law  and  under  statutes. 

§  558.  The  present  law  of  England. 

§  559.  The  law  in  the  United  States  as  to  the  payment  of  a  testator's  debts. 
§§  560,  561.  The  character  of  trusts  under  a  will  for  the  payment  of  debts. 
§§  562-566.  The  order  in  wliich  assets  are  marshalled  for  the  payment  of  debts,  as  be- 
tween heirs,  legatees,  and  devisees. 

§  567.  The  effect  of  charging  debts  upon  real  estate. 

§  568.  Legacies  generalh-  payable  out  of  personal  property. 

§  569.  The  effect  of  charging  legacies  upon  real  estate. 
§§  570,  571.  When  legacies  are  charged  upon  real  estate. 

§  572.  When  some  legacies  are  charged  upon  real  estate,  and  others  are  not. 

§  573.  What  amounts  to  the  p;i3-ment  of  a  legacy  so  as  to  discharge  the  testator's  estate. 

§  574.  Wliere  legacies  bear  interest. 

§  575.  The  charge  of  a  legacy  upon  real  estate  follows  the  land. 

§  576.  Trusts  for  raising  portions. 
§§  577,  578.  AVhether  a  portion  is  to  be  raised  during  the  life  of  a  tenant  for  life. 

§  579.  The  usual  forms  of  drawing  settlements  at  the  present  time. 

§  580.  Powers  of  trustees  to  raise  portions. 

§  581.  At  whiit  time  portions  are  to  be  raised. 

§  582.  Where  trustees  neglect  to  raise  portions  as  directed. 

§  583.  Interest,  expenses,  and  accumulations. 

§  557.  At  common  law,  the  personal  estate  only  of  a  de- 
ceased person  was  liable  for  his  debts,  unless  they  were  debts 
by  specialty,  or  matter  of  record.  However  large  liis  real 
estate  might  be,  no  recourse  could  be  had  to  it  to  pay  simple- 
contract  debts,  although  his  personal  property  was  utterly 
insufficient  to  meet  them.^  The  common  law  has  been  changed, 
and  it  is  now  provided  by  statute  that  copyhold  and  freehold 
estates  shall  be  assets  for  the  payment  of  simple-contract  and 
other  debts.  The  operation  of  the  act  is  confined  to  those 
estates  where  no  provision  is  made  by  will  for  payment  of 

'  Kidney  v.  Coussmaker,  1  Ves.  Jr.  436,  Mr.  Sumner's  notes. 


104  PAYMENT    OF    DEBTS    UNDER   A   WILL.       [CHAP.  XTX. 

debts,  or  to  those  which  the  person  dying  has  not  by  his  last 
will  charged  with,  or  devised  subject  to,  the  payment  of,  his 
debts.i 

§  558.  The  law  in  England  stands  thus :  personal  estate 
always  has  been  liable  for  debts,  and  is  now  primarily  liable, 
so  far  as  it  will  go.  All  creditors  have  the  right  to  proceed 
for  payment  of  their  claims  out  of  such  personalty,  and  the 
deceased  person  can  make  no  provision,  or  trust  by  will,  which 
shall  in  any  way  change,  alter,  postpone,  or  defeat  the  rights 
of  creditors  in  personal  property  ;  that  is  to  say,  a  trust  created 
by  will  in  personal  property  was  and  is  wholly  inoperative  in 
relation  to  creditors.^  But  real  estate,  being  wholly  exempt  from 
simple-contract  debts  of  the  deceased  person,  may  be  devised 
in  trust  for  their  payment.  Courts  favored  these  trusts,  for 
the  reason  that  it  was  just  and  equitable  that  a  man's  debts 
should  be  paid ;  and  if  he  charged  his  lands  in  any  way  for 
their  payment,  or  created  a  trust  for  that  purpose,  such  trusts 
would  be  so  carried  into  effect  as  to  answer  the  purposes  for 
which  they  were  created,  and  the  ends  of  justice.  By  the 
statute  above  cited,  real  estate  in  England  is  now  made  assets 
for  the  payment  of  debts  ;  but  if  the  deceased  person  in  his 
will  has  charged  the  whole  or  a  particular  part  of  his  real 
estate,  or  created  a  trust  in  the  whole  or  any  part  of  it,  cred- 
itors must  have  recourse  to  such  real  estate  for  the  payment  of 
their  claims  in  the  manner  pointed  out  in  the  will.^  Thus,  in 
England,  a  trust  created  by  a  will  in  real  estate,  unlike  a  trust 
in  chattels,  is  valid  and  of  controlling  effect  for  the  payment  of 
debts. 

'  3  &  4  Wm.  IV.  c.  104. 

«  Evans  v.  Tweedy,  1  Beav.  55 ;  Freake  v.  Cranefeldt,  4  M.  &  Cr.  499 ; 
Jones  V.  Scott,  4  CI.  &  Fin.  398,  overruling  Lord  Brougham  in  same  case, 
1  R.  &  M.  255. 

^  CoUis  V.  Robins,  1  De  G.  &  Sm.  139 ;  Hunt  v.  Bateman,  10  Ir.  Eq. 
371 ;  Francis  v.  Gower,  5  Hare,  39 ;  Young  v.  Wilton,  10  Ir.  Eq.  10. 


§§  557-559.]       PAYMENT    OF   DEBTS    UNDER    A   WILL.  105 

§  559.  In  the  United  States,  both  real  and  personal  property- 
are  liable  for  the  debts  of  a  deceased  person ;  and  no  valid 
trust  can  be  created  by  will  for  the  payment  of  debts  in  either 
personal  or  real  estate.  The  statutes  of  the  several  States 
point  out  how  estates  shall  be  administered  for  the  payment 
of  debts.  Creditors  in  all  cases  have  the  right  to  demand  pay- 
ment, according  to  the  provisions  of  the  statutes.  Thus  trusts, 
charges,  or  other  directions  in  wills  for  the  payment  of  debts 
have  no  legal  operation,  so  far  as  creditors  are  concerned.  If 
a  testator  gives  to  A.  his  real  estate  in  trust  to  pay  his  debts, 
creditors  may  still  claim  that  the  estate  shall  be  settled  in  a 
probate  court,  and  the  land  sold  under  a  license,  and  the  pro- 
ceeds applied  according  to  law,  and  not  according  to  the  terms 
of  the  will.  So  absolute  is  this  rule  that  creditors  do  not  hold 
the  relation  of  cestuis  que  trust  to  the  trustees,  or  other  persons 
appointed  under  a  will  to  apply  the  property  to  the  payment  of 
debts.  It  is  well  understood,  that  the  statute  of  limitations 
does  not  run  against  a  cestui  que  trust  so  long  as  the  relation 
of  trustee  and  cestui  que  trust  is  acknowledged  to  exist ;  but  a 
trust  or  charge  in  a  will  upon  certain  property  for  the  payment 
of  debts  creates  no  such  relation,  between  the  trustee  and  cred- 
itor, that  the  statute  of  limitations  ceases  to  operate.  On  the 
contrary,  the  claims  of  a  creditor  against  the  estate  of  a  de- 
ceased person  will  be  barred  by  the  statute  of  limitations,  not- 
withstanding certain  property  is  given  in  trust,  or  charged 
with  tlie  payment  of  such  claims.^  The  principle  is,  that  the 
statutes  having  limited  the  time  within  which  claims  against 
a  deceased  person's  estate  must  be  presented,  the  mere  fact 

^  Carrington  v.  Manning,  13  Ala.  628;  Lewis  v.  Bacon,  3  Hen.  &  Mnn. 
106;  Bull  V.  Bull,  8  B.  Mon.  332;  Agnew  v.  Fetterman,  4  Barr,  62;  Cor- 
nish V.  Wilson,  6  Gill,  318;  Ilines  v.  Spruill,  2  Uev.  &  Bat.  Eq.  93;  Man 
V.  Warner,  4  Whart.  455;  Jones  v.  Scott,  4  CI.  &  Fin.  398;  Freake  v. 
Cranefeldt,  3  M.  &  Cr.  499 ;  Evans  v.  Tweedy,  1  Beav.  55 ;  Hall  v.  Bum- 
stead,  20  Pick.  2;  Smith  v.  Porter,  1  Binn.  209;  Rooseveldt  v.  ]\Iark, 
6  John,  Ch.  266;  Rogers  c.  Rogers,  3  Wend.  503;  Dundas  v.  Blake, 
11  Ir.  Ecj.  138. 


106  PAYMENT    OF   DEBTS   UNDER   A    WILL.       [CHAP.  XIX. 

that  he  designates  certain  property  to  pay  his  debts  (which  the 
creditors  are  not  obliged  to  resort  to)  shall  not  avail  to  prolong 
the  time  for  presentation  of  claims.  But  if  the  creditors  assent 
to  the  trust  thus  created  in  a  will,  and  an  executor  settles  the 
estate  accordingly,  the  creditors  will  be  estopped  from  claim- 
ing a  legal  settlement  of  the  estate  ;  and  the  executor  will 
become  a  trustee  to  settle  the  estate,  as  directed  in  the  will 
and  assented  to  by  the  creditors.^  And  it  is  said  that  a 
trust  thus  created  to  pay  debts  will  prevent  the  lien  of  a 
judgment  from  expiring  without  being  renewed,  unless  the 
creditor  has  neglected  to  renew  the  judgment  within  the 
statute  period.^  So  it  has  been  held  that  if  a  testamentary 
trustee  to  pay  debts,  sells  the  land  which  he  is  directed  to 
sell  for  their  payment,  and  applies  the  money  to  the  purposes 
named,  the  land  will  be  discharged  from  the  lien  of  the  other 
creditors.^ 

§  560.  But  while  the  creation  of  a  trust  by  will,  in  personal 
or  real  estate,  is  wholly  without  legal  operation  so  far  as  cred- 
itors are  concerned,  it  may  be  of  the  utmost  consequence,  as 
between  heirs,  legatees,  devisees,  and  other  persons  interested 
in  the  estate.  Thus  where  a  testator  gave  two-thirds  of  a  farm, 
and  all  the  stock  and  property  connected  with  it,  to  a  son  in 
fee,  with  an  express  order  and  direction  that  the  son  should 
pay  all  his  just  debts  out  of  the  estate  so  given,  and  then  gave 
all  the  residue,  both  real  and  personal,  to  his  wife  in  fee,  and 
made  her  executrix  of  the  will,  the  debts  not  being  paid  by  the 
son,  the  creditors  brought  suits  at  law  against  the  executrix. 
The  son  had  sold  the  farm,  but  part  of  the  purchase-money  had 
been  applied  to  pay  a  debt  due  to  the  purchaser  from  the  son, 
and  part  was  unpaid,  the  purchaser  having  notice  of  the  terms 

•  Bank  of  U.  S.  v.  Beverly,  1  How.  134. 

*  Baldy  v.  Brady,  15  Peiin.  St.  Ill ;  Alexander  v.  McMurry,  8  Watts, 
604 ;  Trinity  Church  v.  Watson,  50  Penn.  St.  518. 

3  Cadbury  v.  Duval,  10  Barr,  267. 


§§  559,  560.]       PAYMENT    OF   DEBTS    UNDER   A   WILL.  107 

of  the  bequest  to  the  son.  The  executrix  brouglita  bill  against 
the  son  and  the  purchaser,  who  had  the  purchase-money  in  his 
hands,  to  compel  the  performance  of  the  trust,  and  the  pay- 
ment of  the  debts  out  of  the  farm  thus  bequeathed  to  the  son. 
Mr.  Justice  Story,  after  having  stated  the  i-esult,  says  :  "  It 
remains  only  to  advert  to  the  objection,  that  the  present  plain- 
tiffs are  not  competent  to  maintain  the  present  suit,  because 
they  have  not  yet  paid  the  testator's  debts.  The  argument  is, 
that  the  creditors  alone  have  a  right  to  maintain  a  suit  to  en- 
force the  charge,  unless  they  have  been  paid  by  the  executrix 
or  the  devisees.  The  right  of  the  creditors  to  enforce  the 
charge  in  equity  cannot  be  doubted. ^  But  I  am  also  of  the 
opinion,  that  the  executrix,  who,  by  the  law  of  the  State,  is 
responsible  for  the  payment  of  the  debts,  where  there  are  real 
or  personal  assets,  has  also  a  right  to  enforce  the  charge.  She 
might  procure  a  license  from  the  proper  authority  to  sell  the 
real  estate,  upon  the  deficiency  of  the  personal  assets,  pursuant 
to  the  statute.  She  might  in  this  way,  perhaps,  reach  the 
estate  charged  with  the  debts  ;  but  the  remedy  would  be  cir- 
cuitous, and  might  be  inadequate  to  all  the  purposes  of  equity. 
She  is  not  compellable  to  adopt  that  course ;  but  may  directly, 
by  the  assistance  of  a  court  of  equity,  reach  the  fund  which, 
in  the  eyes  of  such  a  court,  is  appropriated  for  the  payment  of 
the  debts.  If  she  can  do  this  after  payment  of  the  debts,  there 
is  no  reason  why  she  may  not  do  it  before,  since  she  is  entitled 
to  avert  an  impending  mischief,  and  is  no-t  bound  to  advance 
her  own  money  to  pay  the  creditors.  Besides,  the  testator 
has  disposed  of  all  his  real  and  personal  estate  by  his  will ; 
and  the  executrix,  who  is  a  residuary  legatee  and  devisee,  has 
no  right  to  apply  the  personal  estate  bequeathed  to  other  lega- 
tees to  the  payment  of  the  debts  where  there  are  other  funds 
appropriated  to  the  purpose  ;  and  she  has  a  direct  interest  to 
relieve  property  devised  to  herself  from  the  burden  of  the  debts. 

'  Green  v.  Lowe,  3  Bro.  Ch.  218. 


108  PAYMENT    OF   DEBTS    UNDER   A   WILL.       [CHAP.  XIX. 

The  like  remark  equally  applies  to  the  other  plaintiffs,  who  are 
devisees  exonerated  by  the  will  from  any  contribution  or  lien. 
I  entertain  no  doubt,  therefore,  that  the  plaintiffs  are  compe- 
tent to  maintain  the  present  suit.  It  is  the  common  case  of 
a  party  subjected  to  a  burden  chargeable  upon  her  in  law,  but 
from  which  she  is  entitled  to  be  relieved  in  equity  by  a  para- 
mount obligation  on  another  to  exonerate  her  from  the  whole 
burden."  ^ 

§  561.  This  case  of  Gardner  v.  Gardner,  and  Mr.  Justice 
Story's  opinion,  sufficiently  explain  the  effect  of  a  testator's 
attempting  to  create  a  trust  or  charge  upon  a  portion  of  his 
property  for  the  payment  of  his  debts.  Though  the  creditors 
may  reach  the  property  directly  through  the  executor,  and 
seize  that  which  the  testator  has  charged,  or  any  other  prop- 
erty, those  of  the  testator's  heirs,  legatees,  or  devisees,  who 
have  been  disappointed  or  may  be  disappointed  and  deprived 
of  their  rights  by  being  compelled  to  part  with  the  property 
given  to  them,  may  bring  a  process  against  the  devisee  or  trus- 
tee who  has  received  the  property  charged  with  the  payment 
of  debts,  and  compel  him  to  execute  the  trust  imposed  upon 
him,  or  charged  upon  the  property  given  to  him. 

§  562.  The  general  rule  of  the  English  and  American  courts 
is,  that  the  personal  property  of  a  deceased  person  is  primarily 
liable  for  the  payment  of  his  debts.  It  has  been  seen  that,  at 
common  law,  personal  assets  were  exclusively  liable  for  simple- 
contract  debts.  "When  real  estate  in  England  became  subject 
to  debts,  the  same  rule  applied  as  was  always  held  in  the 
United  States, —  that  real  estate  should  not  be  called  upon  for 
payment  until  the  personal  property  was  exhausted.  This 
rule  extends  to  the  payment  of  debts  secured  by  mortgage,  so 
that  the  heir  to  whom  the  mortgaged  property  has  descended 

'  Gardner  u.  Gardner,  3  Mason,  178. 


§§  560-563.]      PAYMENT   OF  DEBTS   UNDER   A   WILL.  109 

has  a  right  to  call  upon  the  executor  to  apply  the  personal 
assets  to  the  discharge  of  the  mortgage. ^  But  if  a  testator 
purchases  land  subject  to  a  mortgage,  his  personal  estate  is  not 
bound  to  pay  off  and  discharge  such  mortgage,  unless  an  inten- 
tion to  that  effect  can  be  gathered  from  his  will,^ 

§  563.  The  next  fund  in  order  for  the  })ayment  of  debts  is 
that  portion  of  the  real  estate  specially  set  apart  in  the  will, 
or  charged  with,  or  given  in  trust  for,  the  payment  of  debts. 
Of  course,  where  a  testator  has  indicated  what  part  of  his  real 
estate  shall  be  devoted  to  the  payment  of  debts,  it  is  just  and 
equal  between  those  interested  in  his  estate,  aside  from  cred- 
itors, that  his  will  should  be  carried  out.  A  distinction  is 
drawn  between  a  particular  and  specific  charge  upon  a  partic- 
ular parcel  or  portion  of  land,  and  a  general  charge  of  debts.^ 

'  McCampbell  v.  McCampbell,  5  Lit.  9-5  ;  Wyse  v.  Smith,  4  G.  &  J.  295 ; 
M''Dowell  V.  Lawless,  6  Monr.  141 ;  Haleyburton  v.  Kershaw,  3  Des.  105 ; 
Dunlop  V.  Dunlop,  4  Des.  305 ;  Stuart  v.  Carson,  1  Des.  500 ;  Garnet  v. 
Macon,  6  Call,  608 ;  2  Brock.  185  ;  Rogers  v.  Rogers,  1  Paige,  188 ;  Living- 
ston V.  Livingston,  3  John.  Ch.  148 ;  Hoye  v.  Brewer,  3  G.  &  J.  153 ; 
Stevens  v.  Gregg,  10  G.  &  J.  143 ;  Tessier  v.  Wyse,  3  Bland,  185 ;  Lewis 
V.  Thornton,  6  Munf.  87;  Hawley  v.  James,  5  Paige,  318;  Ancaster  v. 
Mayer,  1  Bro.  Ch.  454;  McKay  w.  Green,  3  John.  Ch.  56;  Livingston  v. 
Newkirk,  3  .John.  Ch.  312;  Stroud  v.  Barnett,  3  Dana,  394;  Schemerhorn 
V.  Barhydt,  9  Paige,  29 ;  Chase  v.  Lockerman,  11  G.  &  J.  185 ;  Seaver  v. 
Lewis,  14  Mass.  83;  Adams  v.  Brackett,  4  Met.  280;  Gore  v.  Brazier, 
4  Mass.  354  ;  Brydges  v.  Phillips,  6  Ves.  570 ;  Kelsey  v.  Western,  2  Conist. 
500 ;  Gibson  v.  McCormick,  10  G.  &  J.  65  ;  Holman's  App.  12  Harris,  174  ; 
Dandridge  v.  INIinge,  4  Rand.  397;  Lupton  v.  Lupton,  2  John.  Ch.  014; 
Morris  v.  Mowatt,  2  Paige,  587  ;  MoUan  v.  Griffith,  3  Paige,  402 ;  Hancock 
V.  Minot,  8  Pick.  29 ;  Ruston  v.  Ruston,  2  Yeates,  54 ;  Todd  v.  Todd, 
1  S.  &  R.  453 ;  Martin  v.  Frye,  17  S.  &  R.  426 ;  Miller  v.  Harwell,  3 
Murph.  195 ;    McLoud  v.  Roberts,  4  Hen.  &  M.  443 ;   Foster  v.  Crenshaw, 

3  Munf.  514;  Waring  v.  Waring,  2  Bland,  673;  Marsh  v.  Marsh,  10  B. 
Mon.  3G0;  Leavitt  v.  W^ooster,  14  N.  H.  551  ;  Siins  v.  Sims,  2  Stock.  Ch. 
158;  Clinefetter  v.  Ayers,  16  111.  329;  Hayes  v.  Jackson,   6  Mass.  149; 

4  Kent,  421;  Hewes  v.  Dehon,  3  Gray,  20G. 

^  Andrews  v.  Bishop,  5  Allen,  490 ;  Cumberland  v.  Codrington,  2  John. 
Ch.  229,  257,  272;  Rogers  v.  Rogers,  1  Paige,  188;  Hewes  v.  Dehon,  3 
Gray,  206,  208. 

s  Manning  v.  Spooner,  3  Vcs.  114;  Donne  v.  Lewis,  3  Bro.  Ch.  257; 


110  PAYMENT   OF    DEBTS   UNDER   A    WILL.     .  [CHAP.  XIX. 

§  564.  Next  in  order  for  the  payment  of  debts  is  lands  which 
descend  to  the  heir.  There  being  no  intention  expressed  con- 
cerning this  land,  it  comes  next  after  the  personalty,  which  is 
always  first,  and  that  part  of  the  land  which  by  an  express 
direction  is  made  liable  for  debts.  If  these  two  funds  are  not 
sufficient,  that  part  of  the  testator's  land,  which  had  descended 
to  his  heirs,  without  any  intention  whatever  expi-essed  in  regard 
to  them,  must,  if  necessary,  be  taken  to  discharge  his  debts.^ 

§  565.  The  last  fund  to  be  resorted  to  for  the  payment  of 
debts  is  land  specifically  devised,  although  there  may  be  a 
general  charge  of  debts  upon  all  the  lands.  The  testator  may 
be  supposed  to  have  expressed  a  particular  intention  that  the 
specific  devisees  of  land  shall  have  it  at  any  rate,  unless  all 
other  funds  for  the  payment  of  his  debts  have  been  exhausted, 
and  it  is  necessary  to  resort  to  the  specifically  devised  land,  in 
order  that  his  debts  may  be  paid.^ 

§  566.  Thus  the  general  rule  is,  that  a  deceased  person's 
estate  is  to  be  applied  to  the  payment  of  his  debts  in  the  fol- 
lowing order :  (1.)  The  general  personal  estate  ;  (2.)  Estates 
specifically  devised  for  the  payment  of  debts  ;  (3.)  Estates 
descended ;  (4.)  Estates  specifically  devised,  though  charged 
generally  with  the  payment  of  debts.  And  it  requires  express 
words,  or  the  clear  intent  of  the  testator,  to  disturb  this  order.^ 

Milnes  v.  Slater,  8  Ves.  295;  Davies  v.  Topp,  1  Bro.  Ch.  524;  Powis  v. 
Corbet,  3  Atk.  656;  Harmood  v.  Oglander,  8  Ves.  131;  Martin  v.  Frye, 
17  S.  &  R.  426. 

1  Oneal  v.  Mead,  1  P.  Wins.  693 ;  Cope  v.  Cope,  2  Salk.  449  ;  Howell  v. 
Price,  1  P.  Wms.  291 ;  White  «.  White,  2  Vern.  43 ;  Johnson  v.  Milksopp, 
2  Vern.  112;  Evelyn  v.  Evelyn,  2  P.  Wms.  659;  Gray  v.  Gray,  1  Ch.  Ca. 
296  ;  Gower  v.  Mead,  Pr.  Ch.  2 ;  Commonwealth  v.  Shelby,  13  S.  tfe  R.  348 ; 
Warley  v.  Warlcy,  1  Bailey's  Eq.  398 ;  Robards  v.  Wortham,  2  Dev.  Eq. 
173 ;  Livingston  v.  Livingston,  3  John.  Ch.  148. 

^  Livingston  v.  Livingston,  3  John.  Ch.  148  ;  Chase  v.  Lockerman,  11 
G.  &  J.  186;  Ruston  v.  Ruston,  2  Yeates,  54. 

^  Stephenson  v.  Heathcote,  1  Ed.  38;    Inchquin  v.  French,  1  Cox,  1; 


§§  564-567.]  MARSHALLING    OF    ASSETS.  Ill 

Therefore,  while  creditors  are  not  generally  confined  to  this 
order  for  the  payment  of  their  claims,  legal  representatives, 
heirs,  legatees,  and  devisees  have  rights  against  each  other  for 
relief  in  case  this  order  is  disarranged ;  for  instance,  if  land, 
specifically  devised,  is  taken  for  the  payment  of  debts,  the 
specific  devisee  may  call  upon  the  legal  representatives  to  make 
up  his  loss  from  the  personal  estate  in  their  hands ;  if  that  has 
been  already  exhausted,  he  may  call  upon  the  land  that  was 
specifically  devised  for  the  payment  of  debts ;  if  that  has 
been  applied,  he  may  call  upon  the  heir  to  whom  any  portion 
of  the  land  has  descended  ;  if  such  land  has  already  Ijeen  taken, 
then  the  specific  devisees  shall  contribute  ratably  to  each 
other.^ 

§  567.  This  order  of  payment  or  contribution  among  those 
interested  in  an  estate,  is  called  the  marshalling  of  assets. 
Of  course,  it  is  subject  to  the  will  of  the  testator,  for  he  may 
direct  out  of  what  part  of  his  estate  his  debts  shall  be  paid  ; 
but  it  requires  a  direct  expression,  or  a  manifest  intent,  to 
change  this  order.  It  might  be  supposed,  that,  if  a  testator 
gave  away  his  personal  property,  and  charged  his  debts  upon 
his  real  estate,  it  would  be  a  plain  manifestation  of  an  inten- 
tion to  change  the  order.  But  such  is  not  the  case  ;  for  when 
a  testator  gives  his  personal  estate,  he  is  supposed  to  give  it 
subject  to  the  payment  of  his  debts,  that  being  the  first  fund 
available  for  the  purpose  ;  and  when  he  charges  his  real  estate 
with  the  payment  of  his  debts,  he  is  supposed  to  charge  his  real 

Webb  V.  Jones,  1  Cox,  245;  Bootle  v.  Blundell,  1  Mer.  193;  Barnwell  v. 
Cawdor,  3  Mad.  453;  Watson  v.  Brlckwood,  9  Ves.  447;  Livingston  v. 
Newkirk,  3  John.  Ch.  312;  Livingston  v.  Livingston,  3  John.  Ch.  148; 
Stroud  V.  Barnett,  3  Dana,  394;  Warley  v.  Warley,  1  Bail.  Eq.  397; 
Schemerhorn  v.  Barhydt,  9  Paige,  29  ;  Chase  v.  Lockerman,  11  G.  &  J.  185  ; 
Cook  V.  Dawson,  29  Beav.  123 ;  Seaver  v.  Lewis,  14  Mass.  83 ;  Hewes  v. 
Dehon,  3  Gray,  205 ;  Plympton  v.  Fuller,  11  Allen,  140. 

'  Livingston  v.  Livingston,  3  John.  Ch.  148 ;  Gen.  Stat.  Mass.  c.  92, 
§§  29-36;  Blanuy  v.  Blaney,  1  Gush.  107. 


112  TRUSTS   TO    PAY   LEGACIES.  [CHAP.  XIX. 

estate  with  the  payment  of  such  debts  as  may  remain  unpaid  after 
his  personal  estate  is  exhausted.  Merely  giving  away  personal 
estate  and  charging  debts  upon  the  real  estate,  is  not  incon- 
sistent with  the  application  of  the  personal  estate  to  the  payment 
of  debts,  so  far  as  it  will  go,  and  of  calling  upon  the  real  estate 
only  when  the  personal  estate  is  exhausted.  Therefore,  the 
rule  is,  that  there  must  not  only  be  a  giving  away  of  the  per- 
sonalty, and  a  charging  of  debts  on  the  realty ;  but  there  must 
be  something  further  to  show  that  the  testator  intended  to 
exonerate  the  whole  personalty  from  the  payment  of  the  debts, 
and  to  charge  all  the  debts  upon  the  realty,  and  not  simply 
what  debts  may  remain  after  exhausting  the  personal  estate.^ 

§  568.  Legacies,  whether  specific  or  general,  are  payable  out 
of  the  personal  assets  of  a  testator,  and  the  duty  of  paying 
them  devolves  upon  the  executor  in  the  due  course  of  his 
administration.  If  all  the  personal  assets  are  exhausted  in  the 
payment  of  debts,  specific  legatees  have  a  claim  for  compensa- 
tion out  of  some  other  fund,  if  in  law  they  have  a  higher  equi- 
table claim  in  the  marshalling  of  the  assets  ;  or  for  contribution, 
if  they  stand  upon  the  same  equitable  equality.  If,  however, 
the  personal  assets  are  exhausted  in  the  payment  of  debts, 
general  legacies  must  fail,  unless  the  testator  has  charged  the 
payment  of  them  upon  his  real  estate.  If  there  is  a  charge  for 
the  payment  of  legacies  out  of  the  real  estate,  the  devisee  or 

'  Ancaster  v.  Mayer,  1  Bro.  Ch.  454;  1  Lead.  Ca.  Eq.  505,  with  English 
and  American  notes;  Aklrich  v.  Cooper,  8  Ves.  382;  2  Lead.  Ca.  Eq.  56, 
English  and  American  notes  ;  Silk  v.  Prime,  1  Bro.  Ch.  138,  n. ;  1  Dick.  384, 
2  Lead.  Ca.  Eq.  82,  and  notes;  Allan  v.  Gott,  L.  R.  4  Ch.  439;  Tench  v. 
Cheese,  6  De  G.,  M.  &  G.  453.  The  purpose  of  this  work,  in  treating  of  trusts 
for  the  payment  of  debts,  does  not  call  for  a  more  particular  statement  of  the 
rules  that  govern  the  marshalling  of  assets  among  all  the  persons  who  may 
call  for  such  marshalling  by  reason  of  some  interest  being  taken  from  them 
or  endangered.  The  reader  will  find  the  cases,  both  English  and  American, 
collected  in  the  notes  to  the  leading  cases  above  referred  to,  and  the  rules 
of  law  stated  and  illustrated  with  a  clearness  and  affluence  of  learning  rarely 
equalled. 


§§  566-569.]  TRUSTS  to  pay  legacies.  113 

the  heir,  as  the  case  may  be,  will  hold  the  real  estate  as  a  trus- 
tee for  their  payment.^ 

§  569.  If  the  trust  is  created  in  express  words,  or  if  the  pay- 
ment of  the  legacy  is  directly  charged  upon  a  particular  part, 
or  the  whole  of  the  real  estate,  there  can  be  no  question  as  to 
the  trust,  or  liability  of  the  estate  to  pay  the  legacy  ;  ^  but  where 
the  trust  depends  upon  the  construction  to  be  put  u])on  general 
words,  or  upon  implication  from  the  use  of  certain  phrases,  it 
has  been  a  question  of  considerable  doubt  whether  expressions 
and  words,  sufficient  to  charge  the  payment  of  debts  upon  real 
estate,  are  also  adequate  to  charge  it  with  legacies.  The 
ground  of  the  doubt  is  this,  that  the  payment  of  debts  is  a 
duty,  and  courts  will  construe  very  general  and  loose  expres- 
sions into  an  intention  to  pay  such  debts  out  of  the  real  estate 
in  case  of  the  failure  of  the  personal  estate,  but  that  legacies 
are  mere  voluntary  gifts,  and  they  will  not  be  charged  upon 
real  estate,  unless  there  is  a  manifest  intent  to  do  so.^  In  the 
late  cases,  however,  the  doubt  is  not  referred  to,  and  the  gen- 
eral tendency  is  to  charge  the  real  estate  with  the  payment  of 
legacies  by  the  same  words  that  would  charge  the  payment  of 
debts  upon  real  estate.^  Whether  legacies  are  charged  upon 
lands  or  not,  is  in  all  cases  a  matter  of  intention,  to  be 
gathered  from  the  whole  will.^    Thus  a  mere  direction  that  all 

1  Stevens  v.  Gregg,  10  G.  &  J.  143. 

2  Schuure's  App.  70  Penn.  St.  400. 

•■'  Davis  V.  Gardner,  2  P.  Wnis.  187,  190 ;  Kightley  v.  Kightley,  2  Ves. 
Jr.  328 ;  Kneeling  v.  Brown,  5  Ves.  362;  Williams  v.  Chitty,  3  Ves.  551. 

*  Williams  v.  Chitty,  3  Ves.  551  ;  Trott  v.  Vernon,  Pr.  Ch.  430;  1  Vern. 
708;  Tompkins  v.  Tompkins,  Pr.  Ch.  397;  Elliot  v.  Hancock,  2  Vern.  143; 
Lypet  V.  Carter,  1  Ves.  499;  Ellison  v.  Airey,  2  Ves.  568;  Mirehouse  v. 
Scaife,  2  M.  &  C.  708;  Patterson  v.  Scott,  1  De  G.,  M.  &  G.  531 ;  Sherman 
V.  Sherman,  4  Allen,  392. 

'  Jones  V.  Selby,  Pr.  Ch.  288;  Trent  r.  Trent,  1  Dow.  102;  Austen  v. 
Halsey,  6  Ves.  475;  Miles  v.  Leigh,  1  Atk.  574;  Minor  v.  Wicksteed,  3 
Bro.  Ch.  627;  Webb  v.  Webb,  Barn.  86;  Dowman  v.  Rust,  6  Rand.  587; 
Van  Winkle  v.  Van  Houten,  2  Green,  Ch.  191;  Liipton  v.  Lupton,  2  John. 
Ch.  618;  Paxson  v.  Potts,  2  Green,  Ch.  322;  Harris  v.  Fly,  7  Paige,  421  ; 

VOL.  n.  8 


114  TRUSTS   TO    PAY   LEGACIES.  [CHAP.  XIX. 

debts  and  legacies  are  to  be  paid  is  not  a  charge  of  legacies 
upon  the  real  estate ;  nor  is  a  devise  of  all  the  rest  of  his  real 
and  personal  estate,  not  before  devised,  a  charge  of  legacies 
upon  land,  —  there  being  no  other  words  tending  to  show  that 
the  legacy  is  first  to  be  paid  from  the  land.  But  if  real  estate 
is  devised,  after  the  payment  of  debts  and  legacies,  there  is  no 
question  ;  for  the  residue,  after  the  payment  of  the  legacies,  is 
devised.^ 

§  570.  Where  a  testator  gives  several  legacies,  and  blends 
both  his  real  and  personal  estate  into  one  fund  for  the  payment 
of  his  debts  and  legacies,  and  devises  the  residue,  the  legacies 
are  charged  upon  the  real  estate,  if  the  personal  estate  is  insuf- 
ficient to  pay  both  debts  and  legacies ;  for  a  devise  of  the 
residue  can  only  refer  to  what  is  left  after  satisfying  all  pre- 
vious gifts.2  But  whatever  may  be  the  disposition  made  of  the 
property,  or  however  the  legacies  may  be  given,  there  must  be 
a  manifest  intent,  clearly  deducible  from  the  will,  that  legacies 

Logan  V.  Deshay,  1  Clarke,  Ch.  209;  Brandt's  App.  8  Watts,  198;  Wright's 
App.  12  Penn.  St.  256;  Ripple  r.  Ripple,  1,  Rawle,  386;  Montgomery  v. 
McElroy,  3  W.  &  S.  370;  Hoes  v.  Van  Hoesen,  1  Comst.  122;  Gridley  v. 
Andrews,  8  Conn.  1;  Stevens  v.  Gregg,  10  G.  &  J.  1-43;  Simmons  v.  Drury, 
2  G.  &  J.  32. 

'  Ibid. ;  Newman  v.  Johnson,  1  Vern.  45  ;  Harris  v.  Ingledew,  3  P.  Wms. 
91;  Trott  v.  Vernon,  2  Vern.  708;  Bench  t\  Biles,  4  Mad.  187;  Tompkins 
V.  Tompkins,  Pr.  Ch.  397  ;  Kentish  v.  Kentish,  3  Bro.  Ch.  257. 

2  Cornish  u.Willson,  6  Gill,  299  ;  Kiikpatrick  v.  Rogers,  7  Ired.  Eq.  44  ; 
Tracy  v.  Tracy,  15  Barb.  503;  Cantield  v.  Bostwick,  21  Conn.  550;  Aubrey 
V.  Middleton,  2  Eq.  Ca.  Ab.  479 ;  Hassel  v.  Hassel,  2  Dick.  256 ;  Bright  v. 
Larcher,  3  De  G.  &  J.  148 ;  Kidney  v.  Coussmaker,  1  Ves.  Jr.  436 ;  Bench 
r.  Biles,  4  Mad.  187;  Brudenell  «.  Boughton,  2  Atk.  268;  Mirehouse  v. 
Scaife,  2  M.  &  Cr.  695 ;  Cole  i'.  Turner,  4  Russ.  376 ;  Edgell  v.  Haywood, 
8  Atk.  358;  Greville  v.  Brown,  7  H.  L.  Ca.  689  ;  Field  v.  Beckett,  29  Beav. 
568  ;  Hassanclever  v.  Tucker,  2  Binn.  525;  Witman  v.  Norton,  6  Binn.  395; 
Nichols  V.  Postlethwaite,  2  Dall.  131 ;  McLanahan  v.  Wyant,  1  Penn.  R. 
Ill;  McGlaughlin  v.  McGlaughlin,  24  Penn.  St.  22;  Gallagher's  App.  48 
Penn.  St.  121;  Adams  v.  Brackett,  5  Met.  280;  Dowman  v.  Rust,  6  Rand. 
587;  VanWinkle  v.Van  Houten,  2  Green,  Ch.  172;  Carter  r.  Balfour,  19  Ala. 
815;  Lewis  v.  Darling,  16  How.  10;  Buckley  v.  Buckley,  11  Barb.  43. 


§§  569, 570.]  TRUSTS  to  pay  legacies.  115 

are  to  be  paid  from  the  real  estate  upon  failure  of  the  personal 
estate,  or  thej  cannot  be  charged  upon  the  land.^  Thus  where 
the  devisee  of  real  estate  is  appointed  executor,  and  he  is 
expressly  directed  to  pay  debts  and  legacies,  he  will  be  held 
to  be  a  trustee  for  the  legatee,  or  the  land  in  his  hands  will  he 
subject  to  the  charge  or  trust  for  the  debts  and  legacies.^  But 
if  land  is  devised  to  an  executor,  and  there  is  no  direction  to 
pay  legacies,  they  cannot  be  charged  upon  the  land  in  his 
hands.2  If,  however,  the  personalty  is  grossly  insufficient  to 
pay  the  debts  and  legacies,  very  slight  indications  in  the  will 
will  be  laid  hold  of  by  the  court  to  raise  an  implied  intention 
that  the  executor  is  to  pay  the  legacies  out  of  the  real  estate 
given  to  him.'^  The  use  of  the  word  "  devise,"  in  giving  the 
legacies,  has  been  relied  upon  as  some  evidence  that  the  testa- 
tor intended  to  charge  them  upon  his  real  estate ;  ^  and  so 
stress  has  been  laid  upon  the  fact  that  the  heir-at-law  was 
appointed  residuary  legatee,  devisee,  and  executor;*^  and  so 
the  fact  that  the  legacy  was  to  a  child,  or  other  person  whom 
the  testator  w^as  under  some  moral  obligation  to  support,  has 
been  considered  as  some  evidence  that  the  testator  intended 

1  Adams  v.  Brackett,  5  Met.  282  ;  Lupton  v.  Lupton,  2  Jolin.  Ch.  C14; 
Stevens  v.  Gregg,  10  G.  &  J.  143;  Gridley  v.  Andrews,  8  Conn.  1 ;  and  see 
Paxson  V.  Potts,  2  Green,  Ch.  320 ;  Francis  v.  Clemow,  1  Kay,  435  ;  Wheeler 
V.  Howell,  3  K.  &  J.  198;  Gyett  v.  Williams,  2  John.  &  H.  429;  Owing's 
Case,  1  Bland,  290. 

'  Henvell  v.  Whittaker,  3  Russ.  343 ;  Dover  v.  Gregory,  10  Sim.  393 ; 
Alcock  V.  Sparhawk,  2  Vern.  228;  Doe  v.  Pratt,  6  Ad.  &  El.  180;  Elliot  v. 
Hancock,  2  Vern.  143;  Cross  u.  Kennington,  9  Beav.  150;  Downinan  i\ 
Rust,  6  Rand.  587 ;  Van  Winkle  v.  Van  Houten,  2  Green,  Ch.  172.  But 
see  Parker  v.  Fearnley,  2  S.  «&  S.  592;  Paxson  v.  Potts,  2  Green,  Ch.  313; 
Nyssen  v.  Gretton,  2  Y.  «&  C.  Exch.  222. 

'  Stevens  v.  Gregg,  10  G.  &  J.  143. 

♦  Harris  v.  Fly,  7  Paige,  421 ;  Luckett  v.  White,  10  G.  &  J. 
480. 

°  Trott  V.  Vernon,  2  Vern.  708 ;   Hassel  v.  Hassel,  2  Dick.  526. 

^  Aubrey  v.  Middleton,  2  Eq.  Ca.  Ab.  497  ;  Alcock  v.  Sparhawk,  2  Vern. 
238 ;  Downman  v.  Rust,  6  Rand.  587  ;  Van  Winkle  v.  Van  Houten,  2  Green, 
Ch.  191. 


116  TRUSTS   TO    PAY   LEGACIES.  [CHAP.  XIX. 

the  legacy  to  be  paid  out  of  his  real  estate,  if  the  personal 
estate  was  insufficient.^ 

§  571.  Where  there  is  a  general  direction  given  to  the  exec- 
utor to  pay  debts  and  legacies,  he  is  to  pay  them  out  of  the 
personal  estate  only.^  If  there  is  a  deficiency  of  personal 
assets,  they  must  be  first  applied  to  the  payment  of  debts,  and 
the  legacies  fail  in  the  absence  of  a  manifest  intention  to  pay 
them  out  of  the  real  estate.^  Where  real  estate  is  devised, 
subject  to  the  payment  of  debts  and  legacies,  the  real  estate  is 
to  be  resorted  to  in  aid  of  the  personal ;  and  the  personal  must 
be  first  exliausted  before  the  real  estate  can  be  called  upon, 
unless  there  is  a  plain  intention  that  the  personal  estate  is  to 
be  entirely  exonerated.^  There  is  a  distinction,  however, 
between  a  general  charge  of  legacies  on  land,  and  a  devise  of 
land  subject  to  the  payment  of  a  specific  sum  of  money,  or 
upon  condition  that  tlie  devisee  pays  a  certain  sum,  or  in  trust 
to  pay  a  certain  sum.^  In  such  cases,  the  gift  of  the  sum  is 
contained  in  the  devise  of  the  land ;  and  such  sum  is  not  to 
come  out  of  the  personalty  at  all,  but  is  confined  to  the  land 
exclusively.^    There  is  a  great  difference  between  this  class  of 

1  Lypet  V.  Carter,  1  Ves.  499. 

2  Parker  v.  Fearnley,  2  S.  «fe  S.  692;  Warren  v.  Davies,  2  M.  & 
K.  49. 

'  Hoover  v.  Hoover,  5  Barr,  351. 

*  Amesbury  v.  Brown,  4  Ves.  482;  Holford  v.  Wood,  4  Ves.  76;  Han- 
cock V.  Minot,  8  Pick.  29  ;  Leavitt  tJ.Wooster,  14  N.  H.  550;  Hassan  clever 
V.  Tucker,  2  Binn.  525;  Ruston  v.  Ruston,  2  Yeates,  65;  Fenwick  v.  Chap- 
man, 9  Pet.  466 ;  Bank  of  U.  S.  v.  Beverly,  1  How.  134 ;  Lewis  v.  Darling, 
16  How.  10;  Hoes  v.  Van  Hoesen,  1  Comst.  122;  Buckley  v.  Buckley,  11 
Barb.  43;  Chase  v.  Lockerman,  11  G.  &  J.  186. 

6  Clery's  App.  35  Penn.  St.  54. 

*  Whaley  v.  Cox,  2  Eq.  Ca.  Ab.  549;  Amesbury  v.  Brown,  1  Ves.  482; 
Noel  V.  Henley,  7  Price,  241 ;  Phipps  v.  Annesley,  2  Atk.  57  ;  Wood  v. 
Dudley,  2  Bro.  Ch.  316 ;  Holford  v.  Wood,  4  Ves.  89 ;  Read  v.  Lichfield, 
3  Ves.  479;  Fowler  v.  Willoughby,  2  S.  &  S.  354;  Spurway  v.  Glynn,  9 
Ves.  483;  Gitting  r.  Steele,  1  Swans.  24;  Hoover  v.  Hoover,  5  Barr,  351; 
Halliday  v.  Summerville,  2  Penn.  R.  533. 


§§  570-573.]     TRUSTS  for  the  payment  of  legacies.  117 

legacies  and  debts ;  for  debts  are  a  charge  upon  the  personalty 
at  all  events,  and  independent  of  the  will,  while  general  lega- 
cies are  given  by  will  voluntarily,  and  are  confined  to  payment 
out  of  the  personalty,  unless  an  intention  can  be  found  in  the 
will  to  charge  them  on  the  real  estate  upon  failure  of  the  per- 
sonal ;  but  these  gifts  out  of  the  real  estate  liave  no  existence, 
except  in  the  gift  of  the  real  estate,  and  can  in  no  event  be 
made  a  charge  upon  the  personal  estate.^ 

§  572.  As  the  charge  of  legacies  upon  real  estate  is  wholly  a 
matter  of  intention  in  the  testator,  it  may  happen  that  some  of 
the  legacies  given  in  a  will  are  charged  upon  the  real  estate, 
and  some  are  not.  Thus,  where  a  testator  devised  lands  sub- 
ject to  certain  legacies  mentioned,  and  then  gave  o^^gr  legacies, 
and  devised  the  residue  of  his  lands,  it  was  held  by  Lord 
Thurlow,  that  the  last-named  legacies  were  not  charged  upon 
the  real  estate.^  So  the  testator  may  direct  that  certain  por- 
tions of  his  real  estate  shall  be  exempt  from  the  payment  of 
legacies,  although  he  charges  the  legacies  generally  upon  liis 
real  estate.^ 

§  573.  If  a  testator  charges  some  legacies  on  his  land,  and 
leaves  others  not  so  charged,  and  the  legacies  payable  out  of 
the  land  are  paid  out  of  the  personal  estate,  those  legacies  not 
payable  out  of  the  land  have  a  right  to  stand  in  the  place  of 
the  legacies  that  were  expressly  charged  upon  the  land.  For 
although  there  is  generally  no  marshalling  in  favor  of  general 
legatees  or  annuitants,  yet  if  legatees  who  can  resort  to  the 
real  estate  exhaust  the  personal,  the  legatees  who  have  only 

1  Bickham  v.  Crutwell,  3  M.  &  C.  763 ;  Noel  v.  Henley,  7  Price,  241 ; 
2  Jarm.  Pow.  Dev.  708. 

'  Howe  V.  Medcroft,  1  Bro.  Ch.  201  ;  Masters  v.  Masters,  1  P.  Wins. 
421 ;  Strong  v.  Ingraham,  6  Sim.  197  ;  Radburn  v.  Jervis,  3  Beav.  4o0. 
But  see  Rooke  v.  Worrell,  11  Sim.  216. 

^  Birmingham  v.  Kirwin,  2  Sch.  &  Lef.  448. 


118  TRUSTS  FOR  THE  PAYMENT  OF  LEGACIES.       [CHAP.  XIX. 

the  personal  shall  be  subrogated,  and  their  legacies  become 
a  charge  upon  the  real  estate.^  So  if  debts  are  expressly 
charged  upon  real  estate,  legatees  shall  be  paid  out  of  the  per- 
sonal estate,  as  against  the  heir  or  devisee.^ 

§  574.  Where  an  executor,  who  is  also  appointed  trustee  for 
the  investment  and  holding  of  legacies,  has  set  apart  and  in- 
vested the  legacies,  he  will  cease  to  be  executor  as  to  those 
particular  legacies,  but  will  be  holden  as  trustee  ;  and  the  tes- 
tator's estate  will  no  longer  be  holden  for  the  payment  of  the 
legacy,  if  it  is  afterwards  lost.^  In  the  United  States,  it  is 
usual  for  the  executor  in  such  cases  to  receive  an  appointment 
as  trustee,  and  give  a  bond  to  the  judge  of  probate  for  the 
performance  of  the  trust ;  but  the  executor  may  act  as  trustee, 
and  the  sureties  on  his  bond  as  executor  will  be  holden  for  his 
acts.*     The  estate  of  the  testator  will  not  be  holden  for  any 

'  Hanby  v.  Roberts,  Amb.  127;  Masters  v.  Masters,  1  P.  Wins.  421; 
Bonner  v.  Bonner,  13  Ves.  379  ;  Bligh  v.  Darnley,  2  P.  Wms.  619. 

'■^  Patterson  v.  Scott,  1  De  G.,  M.  &  G.  531;  Conron  v.  Conron,  7  H. 
L.  Ca.  168;  Bardwell  v.  Bardwell,  10  Pick.  19 ;  Mollan  v.  Griffith,  3  Paige, 
402;  Smith  v.  Wyckoff,  11  Paige,  49;  Loomis's  App.  10  Barr,  390  ;  Mire- 
bouse  V.  Scaife,  2  M.  &  Cr.  695,  is  overruled.  This  rule  does  not  apply, 
in  England,  to  legacies  for  charitable  purposes,  as  the  statutes  of  mortmain 
might  thereby  be  eluded.  Mogg  v.  Hodges,  2  Ves.  62 ;  Williams  v.  Ker- 
shaw, note  to  Hobson  v.  Blackburn,  1  Keen,  273 ;  Philanthropic  Soc.  v. 
Kemp,  4  Beav.  581  ;  Sturges  v.  Dimsdale,  6  Beav.  462 ;  Robinson  v. 
Geldard,  3  ]\Iac.  &  Gor.  735.  It  is  not  within  the  purpose  of  this  work  to 
trace  the  rules  in  regard  to  the  marshalling  of  assets.  See  Aldrich  v. 
Cooper,  2  Lead.  Ca.  Eq.  56,  for  an  able  review  of  the  cases  and  statement 
of  all  the  rules  ;  and  see  Teas's  App.  23  Penn.  St.  228  ;  Miller  v.  Harwell, 
3  Murph.  194;  Tombs  v.  Roch,  2  Coll.  494;  Fleming  v.  Buchanan,  3  De 
G.,  M.  &  G.  976. 

3  Page  V.  Leapingwell,  18  Ves.  463 ;  Wilmot  v.  Jenkins,  1  Beav.  401 
Tyson  v.  Jackson,  30  Beav.  384;  Byrchall  v.  Bradford,  6  Mad.  13,  235 
Ex  parte  Chadwin,  3  Swans.  380;  Philippo  v.  Munnings,  2  M.  &  Cr.  309 
Newman  v.  Williams,  10  L.  J.  (n.  s.)  Ch.  106. 

*  Dorr  V.  Wainwright,  13  Pick.  388 ;  Brown  v.  Kelsey,  2  Cush.  248 ; 
Hubbard  v.  Lloyd,  6  Cush.  524;  Prior  v.  Talbot,  10  Cush.  1;  Hall  v. 
Cushing,  9  Pick.  395  :  Newcomb  v.  Williams,  9  Met.  534 ;  Conkey  v.  Dick- 
inson, 13  Met.  53. 


§§  573-576.]  TRUSTS  to  pay  legacies.  119 

loss,  if  the  executor  has  clearly  set  aside  any  fund  as  payment 
of  a  legacy,  although  he  holds  the  same  in  his  own  hands  as 
trustee  for  the  legatee.  If,  however,  the  executor  has  not 
settled  an  account  in  probate  court,  and  charged  off  the  amount 
of  the  legacy  paid  to  him  as  trustee,  he  must  show  some  act, 
such  as  setting  apart  and  payment,  or  the  legatee  will  still  be 
entitled  to  receive  the  legacy  out  of  the  estate  of  the  testator. 
The  mere  mental  determination  of  the  executor  to  set  aside  a 
certain  fund  as  payment  of  a  legacy,  and  to  hold  the  same 
thea'eafter  as  trustee,  is  not  sufficient. ^ 

§  575.  If  the  testator  names  any  time  for  the  payment  of 
legacies,  they  will  bear  interest  from  that  time.  It  has  already 
been  seen,  that  the  tenant  for  life  is  entitled  to  income  upon 
the  estate  given  for  his  use,  after  the  expiration  of  one  year 
from  the  testator's  death,  on  the  ground  that  the  executor  or 
trustee  has  one  full  year  to  reduce  the  estate  to  possession,  and 
to  convert  and  invest  it.^  So  if  a  testator  names  no  time  for 
the  payment  of  legacies,  they  will  be  payable  in  one  year  after 
his  death,  and  will  bear  interest  from  that  time,^  unless  a  con- 
trary intention  is  shown  in  the  will. 

§  576.  Where  an  express  trust  is  created  in  lands  for  the 
payment  of  legacies,  or  they  are  devised  to  an  executor,  trustee, 
or  other  person  beneficially,  and  he  is  to  pay  tlie  legacies 
charged,  and  such  trustee,  executor,  or  other  person  accepts 
the  devise  and  the  trust,  he  will  become  personally  liable  to 
execute  the  trusts  and  pay  the  legacies.*    The  lands  so  charged 

^  Miller  v.  Congdon,  14  Gray,  114  ;  Newcomb  v.  Williams,  9  Met.  534; 
Conkey  v.  Dickinson,  13  Met.  63. 

2  Ante,  §  548. 

^  2  Rop.  Leg.  222;  2  Kent,  417;  Hite  v.  Ilite,  2  Rand.  409;  Birdsall 
r.  Hewlett,  1  Paige,  32  ;  Glen  v.  Fisher,  6  John.  Cb.  33  ;  Trippe  v.  Frazier, 
4  II.  &  J.  446  ;  2  Redf.  on  Wills,  465-475. 

*  Lockwood  V.  Stockholm,  11  Paige,  387;  Dodge  v.  Manning,  11  Paige, 
334;  Bank  of  United  States  v.  Beverly,  1  How.  134;  Maliar  v.  O'llara.  4 
Gilm.  424 ;  Solliday  v.  Gruver,  7  Penn.  St.  452 ;  Mittenberger  v.  Schlegel, 


120  TRUSTS   TO    RAISE   PORTIONS.  [CHAP.  XIX. 

with  the  trust  of  paying  legacies  may  be  followed  into  whose- 
soever hands  they  come  ;  for  the  title  of  the  devisee  or  trustee 
being  by  will  and  recorded,  purchasers  will  be  charged  with 
constructive  notice.^  A  payment  of  the  legacy  by  the  note  of 
the  trustee  or  devisee,  and  a  receipt  in  full  signed  by  the  lega- 
tee, will  not  discharge  the  lien  upon  the  land,  if  the  legatee 
cannot  collect  a  judgment  on  the  note  against  the  devisee.^ 
This  rule,  however,  would  probably  be  confined  to  the  original 
parties  ;  for  if,  after  the  note  and  receipt,  there  should  be  a 
sale  of  the  land,  a  purchaser  would  not  probably  be  holden. 
So  the  statute  of  limitations  will  not  bar  the  claim  of  the  lega- 
tee or  cestui  que  trust  to  receive  his  legacy  from  the  devisee  or 
trustee  ;  ^  but  the  lapse  of  twenty  years  will  create  a  presump- 
tion of  payment.* 

§  577.  In  marriage  and  family  settlements,  whether  by  deed 
or  will,  provisions  are  sometimes  inserted  that  the  trustees 
shall  raise  portions  for  children  at  certain  times  or  upon  cer- 
tain events,  as  upon  their  marriage,  or  arrival  at  the  age  of 
twenty-one.  In  England,  a  term  of  years  is  generally  carved 
out  of  the  estate,  and  limited  to  the  trustees  to  secure  the  pay- 
ment of  such  portions  as  are  directed  to  be  raised.     In  the 

7  Penn.  St.  241 ;  Bugbee  v.  Sargent,  23  Me.  269 ;  Glen  v.  Fisher,  6  John. 
Ch.  33;  Larkin  v.  Mason,  53  Barb.  267. 

'  Harris  v.  Fly,  7  Paige,  421 ;  Aston  v.  Galloway,  3  Ired.  Eq.  126 
Wallington  v.  Taylor,  Saxton,  314;  Howard  v.  Chaflfee,  2  Dr.  &  Sm.  236 
Dodge  V.  Manning,  11  Paige,  334;  Mahar  v.  O'Hara,  4  Gilm.  424;  Mitten 
berger  v.  Schlegel,  7  Penn.  St.  241 ;  Solliday  v.  Gruver,  7  Penn.  St.  452 
Bank  of  U.  S.  v.  Beverly,  1  How.  134 ;  Hallett  v.  Hallett,  2  Paige,  15 
Owing's  Case,  1  Bland,  290;  Kemp  v.  McPherson,  7  H.  «&  J.  320;  Phillips 
V.  Gutteridge,  3  De  G.,  J.  &  S.  332. 

*  Terhune  v.  Colton,  2  Stockt.  21 ;  Scbanck  v.  Arrowsmith,  1  Stockt. 
314. 

3  Watson  V.  Saul,  1  Gif.  188. 

*  Henderson  v.  Atkins,  28  L.  J.  Ch.  (x.  s.)  913.  As  to  the  duty  of 
purchasers  to  look  to  the  application  of  the  purchase-money  of  lands  sold 
for  the  payment  of  legacies,  see  chapter  upon  that  subject. 


§§  576-578.]         TRUSTS  to  raise  portions.  121 

United  States,  it  is  more  usual  to  direct  the  portions  to  be 
raised  from  the  rents  and  profits  of  the  estate,  or  by  sale  or 
mortgage  of  some  part  of  it.  These  directions  are  in  the 
nature  of  charges  upon  the  real  estate,  and  although  there  may 
be  a  covenant  in  the  deed  of  settlement,  that  the  settlor  will 
pay  the  amount,  yet  the  charge  on  the  real  estate  is  generally 
the  p7'{ma7-y  fund,  and  the  covenants  of  the  settlor  or  his  per- 
sonal estate  are  merely  auxiliary  to  tlie  charge  upon  the  land.^ 
If  the  charge  or  trust  is  created  by  will,  it  is  of  course  to  be 
executed  precisely  as  created,  and  the  land  only  is  liable  for 
the  amount  to  be  raised.^ 

§  578.  It  sometimes  happens,  that  trustees  are  directed  to 
hold  an  estate  for  the  life  of  parents,  for  their  use,  and  to  pay 
the  parents  the  rents  during  their  lives,  or  to  permit  them  to 
use,  occupy,  and  improve  the  same  ;  and  they  are  directed  to 
raise  portions  for  the  children,  to  be  paid  them  upon  the  hap- 
pening of  certain  events,  as  their  marriage,  or  arrival  at  twen- 
ty-one, which  events  frequently  happen  during  the  lifetime  of 
the  parents,  or  tenants  for  life.  Under  such  directions,  very 
vexatious  questions  have  arisen  :  whether  the  trustees  are  to 
raise  the  portions  immediately  on  the  happening  of  the  event 
upon  which  the  children  arc  to  be  paid,  or  whether  the  raising 
of  the  money  should  be  postponed  to  the  end  of  the  life-estate 
of  the  parents.  A  vast  number  of  conflicting  decisions  have 
been  made  upon  this  question. ^  In  one  class  of  cases,  it  lias 
been  held  that  the  portions  should  be  raised,  during  the  life- 
estate  of  the  parents,  by  a  sale  or  mortgage  of  the  reversion  ;  * 

'  Lanoy  v.  Atliol,  2  Atk.  444;  Leclimere  v.  Cliarlton,  15  Yes.  193. 

2  Burgoyne  v.  Fox,  1  Atk.  576  ;  Edwards  v.  Freeman,  2  P.  Wuis.  437  ;  1 
Story,  Eq.  Jur.  §  575. 

••'  4  Kent,  149,  150;  2  Story,  Eq.  Jur.  1003. 

■•  Hilller  V.  Jones,  1  Eq.  Ca.  Ab.  337;  Smith  v.  Evans,  Amb.  533; 
Mifehell  c.  Mitehell,  4  Beav.  549 ;  Staniforth  w.  Staniforth,  2  Vern.  4(;0 ; 
Hebblethwaite  v.  Cartwrij^ht,  Forr.  30;  Gerrard  v.  Gerrard,  2  Vern.  458; 
Sandys  v.  Sandys,  1  P.  Wms.  707  ;  Codrington  v.  Foley,  6  Ves.  304;  Hall 


122  TEUSTS   TO   KAISE   PORTIONS.  [CHAP.  XIX. 

in  other  cases,  that  tlie  sale  or  mortgage  should  be  postponed 
until  the  determination  of  the  life-estate. ^  "  The  raising  or 
not  raising  will  depend  upon  the  particular  penning  of  the 
trust  and  the  intention  of  the  instrument ;  "  ^  and  the  court  will 
have  no  leaning  one  way  or  the  other.^ 

§  579.  The  general  rule  is  now  established,  that  where  there 
is  a  direction  to  raise  the  portion  by  sale  or  mortgage,  and  to 
pay  the  same  at  a  particular  time  or  on  the  happening  of  a  par- 
ticular event,  as  on  marriage,  or  at  twenty-one,  and  there  is 
nothing  in  the  will  or  settlement  to  indicate  a  different  inten- 
tion, the  portions  must  be  raised  by  the  trustees  by  an  imme- 
diate sale  or  mortgage  ;  '^  but  if  there  are  any  expressions  from 
which  it  may  be  inferred  that  the  portions  are  not  to  be  raised, 
during  the  continuance  of  the  life-estate  of  the  parents,  effect 
will  be  given  to  such  expressions.  Thus  where  the  parents 
were  to  appoint  the  portions,  by  deed  ov  will  ;^  or  where  the 
trustee  was  to  raise  the  portions  from  and  after  the  end  of  the 
life-estate,^  it  was  held  that  these  expressions  were  conclusive 
that  the  portions  were  not  to  be  raised  during  the  lifetime  of 
the  parents.  The  intention  must  be  sought  in  the  instrument 
only,  and  no  extraneous  evidence  can  be  used.' 

V.  Carter,  2  Atk.  354;  Smith  v.  Foley,  3  Y.  &  C.  142;  Mills  v.  Banks,  3 
P.  Wms.  9. 

1  Reresby  V,  Newland,  2  P.  Wms.  94;  6  Bro.  P.  C.  75;  Verney  v. 
Verney,  2  Ed.  25 ;  Stanley  v.  Stanley,  1  Atk.  545 ;  Conway  v.  Conway.  3 
Bro.  Ch.  267;  Clinton  v.  Seymour,  4  Ves,  440;  Stevens  v.  Dethick,  3  Atk. 
39;  Wynter  v.  Bold,  1  S.  &  S.  507;  Corbett  v.  Maydwell,  2  Vern.  640; 
Brome  v.  Berkley,  2  P.  Wms.  484 ;  Butler  v.  Duncomb,  1  P.  Wms. 
448. 

^  Lord  Talbot  in  Hebblethwaite  v.  Cartwright,  Forr.  32,  and  Lord  Eldon 
in  Codrington  v.  Foley,  6  Ves.  379. 

3  Codrington  v.  Foley,  6  Ves.  380,  contrary  to  Stanley  v.  Stanley,  1 
Atk.  549,  and  Clinton  v.  Seymour,  4  Ves.  460,  where  it  was  said  that  the 
court  would  lean  against  the  raising. 

*  Codrington  v.  Foley,  6  Ves.  380. 

6  Wynter  v.  Bold,  1  S.  &  S.  507.    But  see  Gough  v.  Andrews,  1  Coll.  69. 

«  Butler  V.  Duncomb,  1  P.  Wms.  448. 

'  Corbett  v.  Maydwell,  2  Vern.  641. 


§§  578-581.]  TRUSTS    TO    RAISE   PORTIONS.  123 

§  580.  At  the  present  day,  it  is  the  usual  practice  to  insert 
in  settlements  a  clause  to  the  effect  that  portions  shall  not  he 
raised  during  the  continuance  of  the  life-estate,  or  during  the 
lifetime  of  the  parents.^  Upon  the  happening  of  the  event  upon 
which  the  portion  is  payable,  the  child  takes  a  vested  interest 
in  the  portion  ;  and,  if  he  dies  before  it  is  paid,  the  right  to  the 
portion  will  vest  in  his  representatives,  to  be  paid  when  the 
portion  is  raised.  Courts  adopt  this  construction  wherever  it 
is  possible  to  sustain  it,^  though  they  never  do  violence  to  the 
express  words  of  the  instrument  in  order  to  uphold  it.^  Thus, 
if  it  is  manifest  on  the  face  of  the  instrument,  that  no  child  was 
intended  to  take  a  portion  unless  he  survived  his  parents,  the 
expressed  intention  will  prevail.^  So,  in  the  case  of  a  voluntary 
settlement,  the  children  of  a  deceased  child,  for  whom  a  portion 
was  to  be  raised,  will  take  such  portion,  and  the  consideration 
of  love  and  affection  extended  to  grandchildren  will  be  a  suffi- 
cient consideration  to  uphold  the  settlement,  though  voluntary, 
so  far  as  the  settlor  has  placed  himself  in  loco  pay'entis.^  There- 
fore it  is  now  the  usual  practice  to  insert  a  clause  in  the  settle- 
ment to  the  effect,  that  such  portion  shall,  or  shall  not,  be  payable 
to  such  child's  representatives,  in  case  he  dies  before  his  parents, 
or  before  the  portion  is  payable  to  him. 

§  581.  If  the  portions  to  be  raised  arc  effectually  charged 
upon  the  land,  the  trustees  will  take,  by  implication,  the  power 
of  selling  or  mortgaging  it  for  the  purpose,  although  that  power 

1  Hall  V.  Carter,  2  Atk.  3o6. 

2  Clayton  v.  Glengall,  1  Dr.  &  W.  1  ;  Howgrave  v.  Cartier,  3  V.  &  B. 
86 ;  Coop.  66 ;  Whatford  v.  Moore,  2  M.  &  C.  291 ;  Emperor  v.  Rolfe,  1 
Ves.  208;  Powis  v.  Burdett,  9  Ves.  428;  Frye  v.  Shelbourne,  3  Sim.  243; 
Combe  v.  Combe,  2  Atk.  185;  Hope  v.  Clifden,  6  Ves.  499;  Woodcock  v. 
Dorset,  3  Bro.  Ch.  569 ;  King  v.  Hake,  9  Ves.  438. 

3  Wbatford  v.  Moore,  7  Sim.  574 ;  3  M.  &  Cr.  274 ;  Fitzgerald  v.  Field, 
1  Buss.  430;  Hotcbkin  v.  Hunipbrey,  2  INIad.  65. 

*  Swallow  V.  Binns,  1  K.  &  J.  417;  19  Jur.  843;  Henderson  v.  Kenni- 
cott,  12  Jur.  848;  Jones  v.  Jones,  13  Sim.  568;  Evans  v.  Scott,  1  CI.  & 
Fin.  (n.  s.)  57. 


124  TRUSTS   TO    RAISE   PORTIONS.  [CHAP.  XIX. 

is  not  given  to  them  in  the  instrument ;  for  that  is  the  most 
natural  way  of  carrying  out  the  intention  of  the  parties  in  rais- 
ing the  portions.^  Even  where  the  trust  is  to  raise  the  portion 
from  rents  and  profits,  if  a  particular  time  is  named  for  the 
payment  so  near  that  it  is  impossible  to  raise  the  sum  before 
the  appointed  time,  it  will  be  considered  that  it  was  inconsistent 
that  the  settlor  intended  that  the  whole  sum  should  be  raised 
from  the  annual  rents  and  profits,  and  a  mortgage  or  sale  will 
be  ordered.^  So  if  the  directions  to  the  trustees  are  to  raise 
the  portions  "  as  soon  as  conveniently  may  be,"  or  "  as  soon  as 
possible."  3  The  rule  has  been  carried  to  the  extent,  that  where 
the  trustees  were  directed  to  raise  a  gross  sum  for  portions  from 
the  rents  and  profits,  and  there  were  no  words  restricting  the 
authority  to  annual  rents  and  profits,  they  have  been  held  to  be 
authorized  to  raise  the  required  sum  at  once  by  sale  or  mort- 
gage.* The  intention  of  the  settlor,  however,  must  prevail,  and 
if  the  portions  are  to  be  raised  from  annual  rents  and  profits, 
or  if  any  words  are  used  implying  such  an  intention,  there  can 
be  no  sale  or  mortgage.^  In  cases  where  the  portions  are  to  be 
raised  from  rents  and  profits,  and  a  power  of  sale  or  mortgage 
is  also  given  by  implication  or  in  express  words,  the  rents  and 
profits  must  first  be  applied  so  far  as  they  will  go,  in  order  to 
sell  as  small  a  part  of  the  estate  as  possible.^   The  trustees  may 

'  Backhouse  v.  Middleton,  1  Ch.  Ca.  75  ;  Sheldon  v.  Dormer,  2  Vern. 
310;  Ashton  v.  ,  10  Mod.  401;  Maynel  i\  Massey,  2  Vern.  1. 

2  Sheldon  v.  Dormer,  2  Vern.  310;  Okeden  v.  Okeden,  1  Atk.  551 ; 
Backhouse  v.  Middleton,  1  Ch.  Ca.  175 ;  Allan  r.  Backhouse,  2  V.  &  B.  65. 

3  TrafFord  v.  Ashton,  2  P.  Wms.  416 ;  Ashlon  v. ,  10  Mod.  401 ; 

Bloom  V.  Waldron,  3  Hill,  367. 

■•  Ivy  V.  Gilbert,  2  P.  Wms.  19;  Baines  v.  Dixon,  1  Ves.  42;  Green  v. 
Belcher,  1  Atk.  505 ;  Evelyn  v.  Evelyn,  2  P.  Wms.  669  ;  Shrewsbury  v. 
Shrewsbury,  1  Ves.  Jr.  234 ;  Warburton  v.  Warburton,  2  Vern.  420 ;  Mills 
V.  Banks,  3  P.  Wms.  7 ;  Hall  v.  Carter,  2  Atk.  358 ;  Anon.  1  Vern.  104 ; 
Schermerhorne  v.  Schermerhorne,  6  John.  Ch.  70  ;  1  Story,  Eq.  Jur.  1063 
et  seq. 

^  Garmstone  r.  Gaunt,  9  Jur.  78. 

®  Okeden  v.  Okeden,  1  Atk.  552;  Warter  v.  Hutchinson,  1  S.  &  S.  276 ; 
Hall  V.  Carter,  2  Atk.  358. 


§§  581-583.]  TRUSTS   TO   RAISE   PORTIONS.  125 

also  raise  portions  by  selling  the  wood  and  timber  upon  an 
estate,  or  the  minerals  and  mines  may  be  worked  for  the  rais- 
ing of  portions.^ 

§  582.  If  Si  gross  sum  is  directed  to  be  raised  for  the  portions 
of  several  children,  to  be  paid  at  twenty-one  or  any  other  ap- 
pointed time,  and  the  shares  of  each  are  vested,  though  not 
payable,  the  gross  sum  should  be  raised  as  soon  as  the  first  por- 
tion becomes  payable  ;  ^  and  the  portions  not  then  payable  should 
be  invested  in  the  securities  allowed  by  law,  or  in  safe  securi- 
ties, where  there  are  no  investments  pointed  out  by  statutes  or 
orders  of  court.  It  is  not  a  proper  administration  to  incumber 
an  estate  with  as  many  different  mortgages  as  there  are  por- 
tions, when  one  gross  sum  is  directed  to  be  raised.^  But  if 
several  distinct  sums  are  directed  to  be  raised  and  paid  at  differ- 
ent times,  the  several  portions  cannot  be  raised  until  they  be- 
come payable ;  and  if  the  trustees  raise  them  before,  and  lose 
or  misapply  the  money,  the  land  would  still  be  liable  to  the 
charge,  although  some  of  the  portions  were  payable.^ 

§  583.  Where  trustees  are  directed  to  apply  the  rents  and 
profits  of  an  estate  for  a  certain  period  to  the  maintenance  and 
education  of  children  or  other  persons,  such  direction  will  con- 
stitute a  charge  upon  the  estate  in  the  hands  of  the  trustees.* 
If  the  trustees  are  directed  to  raise  a  portion  or  portions  out  of 
the  rents  and  profits,  at  or  before  a  certain  time,  and  they  suf- 
fer tlie  term  to  expire  without  raising  the  portions,  the  court 
can  direct  them  to  be  raised  out  of  the  rents  and  profits  on 
hand,  or  it  can  order  those  persons  to  whom  such  rents  and 

1  Offley  V.  Offley,  Pr.  Ch.  27. 

*  Gillbrand  v.  Goold,  5  Sim.  149. 

'  Dickonson  v.  Dickenson,  3  Bro.  Cli.  19;  Breedon  v.  B  eedon,  1  R.  & 
M.  413;  Sowarsby  v.  Lacy,  4  Mad.  142;  Lavender  v.  Stanton,  G  Mad. 
46. 

*  Robinson  v.  Townshend,  3  G.  &  J.  413;  Fox  v.  Phelps,  17  Wend. 
393  ;  20  Wend.  437. 


126  TRUSTS   TO    RAISE   PORTIONS.  [CHAP.  XIX. 

profits  have  been  distributed,  to  refund  or  contribute  to  the 
raising  of  the  portions.^ 

§  584.  Interest  is  payable  upon  portions  from  and  after  the 
time  named  for  tlieir  payment,  althougli  nothing  is  said  in  the 
settlement  upon  that  subject.^  If,  however,  there  are  any  pro- 
visions in  the  will  or  settlement  upon  the  subject  of  interest,  or 
for  the  payment  of  any  particular  sum  in  place  of  interest, 
such  provisions  must  be  carried  into  effect.^  So  the  directions 
of  the  settlement  must  be  followed  in  relation  to  the  expenses 
of  raising  the  portions  ;  but  if  there  are  no  such  directions,  the 
expenses  must  be  paid  out  of  the  estate.^  Trusts  for  accumula- 
tions to  raise  portions  for  children  are  specially  excepted  from 
the  operation  of  the  Thellusson  act,^  so  called,  regulating  trusts 
for  accumulation  ;  but  such  trusts  are  not  excepted  in  the 
statutes  of  New  York  ^  and  Pennsylvania  '^  against  accumula- 
tions. 

'  Hawley  v.  James,  5  Paige,  318. 

2  Beal  V.  Beal,  Pr.  Ch.  405;  Bagenal  v.  Bagenal,  6  Bro.  P.  C.  Si'; 
Roseberry  v.  Taylor,  6  Bro.  P.  C.  43;  Hall  v.  Carter,  2  Atk.  358;  Pomfret 
V.  Winsor,  2  Ves.  472 ;  Boycott  v.  Cotton,  1  Atk.  552 ;  Leech  v.  Leech, 
2  Dr.  &  W.  568,  overruling  Hays  v.  Bayley,  3  Sugd.  V.  &  P.  (10th  ed.)  ; 
Guillam  V.  Holland,  2  Atk.  343 ;  Trimlestown  v.  Colt,  1  Ves.  277. 

8  Clayton  v.  Glengall,  1  Dr.  &  W.  1 ;  Boycott  v.  Cotton,  1  Atk.  553 ; 
Mitchell  V.  Bower,  3  Ves.  286. 

*  Mitchell  V.  Mitchell,  4  Beav.  549. 

^  39  &  40  Geo.  IH.  c.  98;  Edwards  v.  Tuck,  3  De  G.,  M.  &  G.  40; 
Barrington  v.  Liddell,  2  De  G.,  M.  &  G.  480;  Jones  v.  Maggs,  9  Hare, 
605;  Evans  v.  Hellier,  5  CI.  &  Fin.  114;  Burt  v.  Sturt,  10  Hare,  415; 
Beech  V.  Vincent,  3  De  G.  &  Sm.  678 ;  19  L.  J.  Ch.  131 ;  Morgan  v.  Morgan, 
20  L.  J.  Ch.  109 ;  Halford  v.  Stains,  16  Sim.  488. 

«  R.  S.  pt.  2,  tit.  2,  c.  1,  art.  1,  §  37. 

T  Purd.  L.  507 ;  1853,  April  18,  §  9. 


§§  583,  584.]       ASSIGNMENTS    IN    TRUST    FOR    CREDITORS.  127 


CHAPTER  XX. 

TRUSTS  UNDER  ASSIGNMENTS  FOR  CREDITORS  ;  TRUSTS  UNDER  DEEDS 
FOR  PARTICULAR  CREDITORS  ;  AND  TRUSTS  UNDER  POWER  OP  SALE 
MORTGAGES. 

§  585.  Trusts  for  creditors. 

§  686.  Whether  preferences  can  be  made  in  such  trusts. 

§  587.  Whether  these  trusts  are  void  .ns  fraudulent  under  the  bankrupt  hxws. 

§  588.   A  corporation  may  create  a  trust  for  its  creditors. 

§  589.  The  manner  of  creating  a  trust  for  creditors. 

§  590.  Whether  a  trust  for  creditors  is  fraudulent  or  not  under  the  statutes  agaiust 

fraudulent  convej'ances. 
§§  591,  592.  What  acts  and  conditions  will  make  such  a  trust  fraudulent  and  void. 
§  593.  Wliere  such  trusts  are  revocable  by  the  debtor. 
§  594.  After  notice  and  acceptance  of  the  trust,  creditors  may  enforce  it. 
§  595.  Wiio  must  be  parties  to  a  suit  to  enforce  the  trust. 
§  596.  As  to  liens  upon  the  trust  property  ami  rights  of  the  trustees. 
§  597.  The  trustees  must  proceed  according  to  the  deed  of  trust. 
§  598.  Powers  of  the  trustees  under  deeds  of  assignment. 
§  599.  Partnership  assignments. 
§  600.  Conditions  of  an  assignment  and  interest. 
§  601.  The  statute  of  limitations. 
§  602.  The  order  of  payment  by  the  trustees. 

§  602  a.  Trusts  under  deeds  to  secure  particular  debts,  and  under  power  of  sale  mort- 
gages. 
§  602  b.  The  several  forms  of  mortgages. 
§  602  c.  The  equity  of  redemption  and  powers  of  sale. 
§  602  d.  Deeds  of  trust  and  power  of  sale  mortgages  of  the  same  character. 
§  602  e.  Form  and  execution  of  deeds  of  trust. 
§  602/".  For  wiiat  pur[)ose  tliey  may  be  made. 
§  602  (/.  Powers  of  trustees  under  deeds  of  trust  and  power  of  sale  mortgages  depend 

entirely  upon  the  contract. 
§  602 /(.  Such  |)owers  are  irrevocable. 

§  602  i.  Performance  of  tlie  conditions  of  the  mortgage  extinguishes  the  power. 
§  602y.  The  estates  of  the  mortjjagor  and  mortgagee. 
§  602  k   A  power  of  sale  is  a  power  appendant  to  the  estate. 
§  602  I.  Nature  of  the  trusts  under  a  power  of  sale. 
§  602  tn.  The  trusts  governed  by  the  same  rules  as  other  trusts. 
§  602  n.   Who  may  execute  or  perform  tlie  trusts. 
§  602  0.  Trustees  must  exercise  the  utmost  good  faith. 
§  60'ip.  These  powers  must  be  strictly  followed. 

§  602  q.  Whether  tlie  sale  ma}'  be  public  or  private,  and  the  form  of  notice. 
§  602  r.  Notice  must  be  certain  as  to  time  and  place  of  sale. 


128  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

§  602  s.  Statements  in  notice  must  be  accurate. 

§  602  t.  If  notice  is  not  given  according  to  tlie  power,  the  sale  void. 

§  602  «.  Sale  may  be  adjourned,  and  notice. 

§  602  V.  Tliose  having  the  power  of  sale  cannot   purchase  unless  specially  authorized 

by  the  power. 
§  602  w.  Effect  of  a  purchase  by  the  trustee  or  mortgagee. 
§  602  a:.  Eflect  of  a  sale  under  a  power,  what  rights  it  bars. 
§  602  y.  Whetlier  the  sale  may  be  in  lots  or  in  a  mass. 
§  602  2.  "Whether  the  sale  will  be  set  aside  for  inadequacy  of  price. 
§  602  aa.  Effect  of  a  sale  under  an  irregular  exercise  of  the  power. 
§  602  lib.  What  a  sale  under  the  regular  exercise  of  the  power  passes,  and  the  rights  of 

the  parties. 
§  602  cc.  If  the  fale  is  not  regular,  the  equit}*  of  reilemption  is  not  barred. 
§  602  del.  Irregularities  in   the  execution  of  the  power  of  sale  may  be  waived  by  the 

party  for  whose  benefit  they  are  created. 
§  602  ee.  When  courts  may  enjoin  the  sale. 

§  602_^.  How  the  trustee  or  mortgagor  executes  his  trust  after  a  sale. 
§  602  gg.  Mortgages  with  power  of  sale  may  be  foreclosed  in  any  other  legal  manner. 

§  585.  A  DEBTOR  may  convey  or  assign  both  his  real  and 
personal  estate  to  trustees  for  the  payment  of  his  debts  ;  and 
such  trust  may  be  limited  to  the  payment  of  one  particular 
debt  due  to  the  trustees  or  some  third  person,^  or  of  several 
debts  specified  in  the  deed  or  schedule  annexed  to  it.^  This 
trust  may  be  extended  generally  for  the  benefit  of  all  the 
debtor's  or  grantor's  creditors,^  or  to  all  who  execute  the  deed 
or  otherwise  assent  thereto.*  The  trust  may  be  further  lim- 
ited to  pay  equally  without  distinction  ;  ^  or  at  common  law,  it 
may  be  limited  to  make  certain  priorities  and  preferences  in 
the  payments.*'     The  deed  may  direct  the  debts  to  be  paid  in 

*  Page  V.  Broom,  4  Russ.  6  ;  De  Wol  ?».  Chapin,  4  Pick.  59  ;  Cooper  v. 
Whitney,  ?,  Hill,  95;  Chaplin  v.  Maglaughlin,  65  Penn.  St.  492. 

*  Boaznian  v.  Johnson,  3  Sim.  377;  Hamilton  v.  Houghton,  2  Bligh, 
169 ;  Garrard  v.  Lauderdale,  3  Sim.  1 ;  Wahvyn  v.  Coutts,  3  Mer.  707  ;  3 
Sim.  14  ;  Shirly  v.  Ferrers,  1  Bro.  Ch.  41 ;  Purefoy  v.  Piirefoy,  1  Vern.  28. 

3  Carr  v.  Burlington,  1  P.  Wms.  228;  Boswell  v.  Parker,  2  Ves.  364; 
Hinde  v.  Blake,  3  Beav.  234 ;  Acton  v.  Woodgate,  2  My.  &  K.  492. 

*  Dunch  V.  Kent,  1  Vern.  260;  Ex  parte  Richardson,  14  Ves.  184; 
Spottisvvoode  v.  Stockdale,  Coop.  102 ;  Hatch  v.  Smith,  5  Mass.  42. 

6  Carr  v.  Burlington,  1  P.  Wms.  228. 

*  Lanning  v.  Lanning,  2  Green,;Ch.  228;  McColghan  v.  Hopkins,  17  ^Id. 
395  ;  Purefoy  v.  Purefoy,  1  Vern.  28;  Cunningham  r.  Freeborn,  11  Wend. 
241;  Stevenson  v.  Agry,  7   Ham.  (2d  pt.)  247;  Pearson  r.  Rockhill,  4  B. 


§§  585.]  PREFERENCES.  129 

full,^  or  a  certain  proportion  or  composition  may  be  determined 
to  be  paid. 2  The  deed  may  contain  a  trust  for  creditors,  and 
also  a  settlement  upon  a  wife  and  children.^  An  arrangement 
of  this  kind,  fairly  made  by  a  contract  with  the  creditors,  or 
accepted  or  acted  upon  by  them,  is  valid  and  binding  upon  all 
parties  ;  ^  and  courts  will  enjoin  or  restrain  any  act  in  viola- 
tion of  this  trust  by  any  of  the  parties.^  Such  a  trust  deed  for 
the  payment  of  debts  is  favorably  regarded  in  equity ;  and  it 
will  be  supported,  if  possible,  without  regard  to  the  strict 
technicalities  of  the  law;^  as,  where  a  party,  with  power  of 
leasing  in  possession,  made  a  lease  to  commence  in  the 
future,  in  trust  for  the  payment  of  his  debts,  or  where  a 
party  covenanted  to  stand  seised  of  land  to  the  use  of  another, 
in  consideration  of  his  paying  the  debts  of  the  covenantor 
out  of  the  profits  of  the  land,  the  transactions  were  upheld 
in  equity,  as  trusts  for  the  payment  of  debts,  though  they 
would  not  have  been  good  at  law.'  In  such  a  deed,  the  recital 
of  debts  raises  a  presumption  of  indebtedness,  but  it  may  be 
rebutted.^ 

Mon.  296 ;  Nivlon  v.  Douglass,  2  Hill,  Ch.  443 ;  Moffatt  v.  McDowall, 
1  McCord,  Ch.  434 ;  Tompkins  v.  Wheeler,  16  Pet.  106 ;  McCollough  v. 
Sommerville,  8  Leigh,  41.5  ;  Ilickley  v.  Fanners'  &  Mech.  Bank,  5  Gill  &  J. 
377;  Williams  v.  Brown,  4  Jolin.  Ch.  427;  Brashear  v.  West,  7  Pet.  608; 
Spring  V.  South  Carolina  Ins.  Co.  8  Wheat,  268  ;  Hatch  v.  Smith,  5  Mass. 
42  ;  Stevens  v.  Bell,  6  Mass.  339  ;  Lippineott  v.  Barker,  2  Binn.  174  ;  Wilkes 
V.  Ferris,  8  John.  335 ;  Rankin  v.  Loder,  2  Ala.  380 ;  How  v.  Camp,  W^alk. 
Ch.  427 ;  Holbrook  v.  Allen,  4  Flor.  87. 
'  Ibid. 

*  Stephenson  v.  Hayward,  Pr.  Ch.  310;  Tatlnck  v.  Smith,  6  Bing.  339; 
Constantein  v.  Bleache,  1  Cox,  287  ;  Vernon  v.  Morton,  8  Dana,  247. 

'  Johnson  v.  Malcomb,  6  Jones,  Eq.  120. 

*  Small  V.  Marwood,  9  B.  &  Cr.  300. 

*  Spottiswoode  v.  Stockdale,  Coop.  102;  Mackenzie  v.  IMackenzie,  16 
Ves.  372;  Ex  parte  Sadler,  15  Ves.  52;  Beck  v.  Parker,  65  Penn.  St.  262. 

'  Duneh  V.  Kent,  1  Vern.  260;  Spottiswoode  v.  Stockdale,  Coop.  102; 
Turner  v.  Jaycox,  40  Barb.  164. 

">  Pollard  V.  Greenville,  1  Ch.  Ca.  10 ;  Lord  Paget's  Case,  1  Leon.  194 ; 
4  Cruise,  Dig.  tit.  32,  c.  9,  §§  25,  26. 

8  Graham  v.  Anderson,  42  111.  51-i. 

VOL.  11.  9 


130  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

§  586.  At  common  law,  an  insolvent  debtor  has  the  right  to 
prefer  any  of  his  creditors.  He  may  prefer  one  to  all,  or  all 
to  one,  for  the  reason  that  it  is  not  illegal  to  pay  debts,  and  as 
creditors  may  sue  and  obtain  judgment,  and  levy  executions, 
each  one  for  himself,  and  obtain  as  much  advantage  as  possible 
by  gaining  priority  of  time,  so  the  debtor  may  voluntarily  do 
what  each  one  of  his  creditors  may  do  by  law,  that  is,  obtain  a 
preference. 1  But  in  many  of  the  States,  as  Maine,  New  Hamp- 
shire, J\Iassachussetts,2  Connecticut,  New  Jersey,  Pennsylvania, 
Ohio,  Iowa,  and  Georgia,  preferences  are  abolished  by  statute, 
and  all  debts  owing  to  those  who  become  parties  to  the  assign- 
ment must  be  paid  equally,  and  no  preferences  can  be  made 
except  of  those  debts  which,  by  the  laws  of  the  United  States 
and  of  the  State,  must  be  paid  in  full.^  In  all  those  States 
which  had  a  State  system  of  insolvent  or  bankrupt  laws,  an 
assignment  of  all  a  debtor's  property,  giving  preferences  to 
some  creditors,  was  an  act  of  insolvency  or  bankruptcy,  and 
was  fraudulent  and  void.  Under  the  bankrupt  law  of  the 
United  States  now  in  force,  all  conveyances  and  assignments, 
made  within  six  months  of  filing  a  petition  of  bankruptcy, 
which  give  a  preference  to  any  creditor,  are  fraudulent  and 
void,  if  the  debtor  knows  himself  to  be  insolvent,  and  there  is 
an  intent  to  prefer^  Substantially  the  same  provisions  are 
enacted  in  the  English  statutes  of  bankruptcy.^  In  some  of 
the  States,  preferences  are  prohibited,  and  an  assignment  con- 
taining a  preference  is  fraudulent  and  void  ;  but  in  others,  as  in 
Ohio  and  Pennsylvania,  the  assignment  is  not  void,  but  the 
provision  only  containing  the  preference  is  void,  and  the  assign- 
ment enures  to  all  creditors  equally  in  proportion  to  their 
demands  :  '^  but  if  the  assignment  is  in  trust  for  such  creditors 

*  Ante,  §  585,  and  cases  cited. 

*  Stat.  1836,  c.  238,  §  3. 

'  Thomas  v.  Jenkes,  1  Amer.  Lead.  Ca.  74. 

*  Stat.  1867,  March  2,  §§  81,  82,  83. 

*  24  &  25  Viet.  c.  134. 

6  Law  V.  Mills,  18  Penn.  St.  185;  Wiener  v.  Davis,  18  Penn.  St.  331; 


§§  586,  587.]  PREFERENCES.  131 

as  release,  no  releasing  creditors  are  excluded.^  In  States 
where  preferences  have  not  been  prohibited  by  statute,  courts 
lean  strongly  against  them,  and  will  not  support  them  if  they 
can  be  avoided  for  any  good  reason.^  But  these  statutes 
against  preferences  apply  only  to  general  assignments,  and  not 
to  bona  fide  sales  to  a  creditor  to  pay  a  valid  debt,  or  partial 
assignments  for  particular  purposes.^  "While  the  general  bank- 
rupt law  is  in  force,  assignments  will  be  infrequent ;  but,  as 
they  may  still  be  made,  a  general  outline  of  the  law  only  will 
be  stated. 

§  587.  If  a  debtor  assigns  his  whole  property,  he  becomes 
insolvent  and  bankrupt.  The  bankrupt  laws  require  a  bank- 
rupt's estate  to  be  under  the  control  of  commissioners  or 
assignees  appointed  by  and  amenable  to  a  court  of  law,  and 
not  under  the  control  of  persons  appointed  by  the  debtor.^ 
Therefore  every  general  assignment  is  an  act  of  bankruptcy ; 
if  there  are  preferences,  it  is  a  fraud  upon  the  other  creditors.^ 
If  it  is  an  assignment  for  an  equal  distribution,  it  is  a  fraud 
upon  the  policy  of  the  law.^  Such  deed  will  be  fraudulent  and 
an  act  of  bankruptcy,  although  it  contains  a  proviso  that  it 
shall  be  void  if  the  trustees  think  fit,  or  a  proviso  that,  if  the 
creditor  or  creditors  to  a  certain  amount  do  not  execute  within 

Hulls  V.  Jeffrey,  8  Ohio,  390;  Ilarshman  u.  Lowe,  9  Ohio,  92;  Wilcox  v. 
Kellogg,  11  Ohio,  394;  Mitchell  i;.  Gazzam,  12  Ohio,  315. 

^  Lra's  App.  9  Ban-,  501. 

^  Boardman  v.  Halliday,  10  Paige,  224;  Cram  v.  Mitchell,  1  Sand.  251; 
Webb  i\  Daggett,  2  Barb.  10;  Nicholson  v.  Leavitt,  4  Sand.  279. 

'  McWhorter  v.  Wright,  5  Ga.  555;  Bates  v.  Coe,  10  Conn.  281;  Mer. 
Man.  Co.  v.  Smith,  8  N.  H.  347;  Beard  v.  Kimball,  11  N.  H.  471;  Barker 
V.  Hall,  13  K  H.  298;  Hcnshaw  v.  Sumner,  23  Pick.  446. 

■»  Dutton  V.  Morrison,  17  Ves.  199;  Worsley  v.  Demattos,  1  Burr.  470; 
Simpson  v.  Sikes,  6  M.  &  S.  312;  Hobson  v.  Markson,  1  Dillon,  420; 
In  re  Burt,  1  Dillon,  439. 

^  Wilson  I'.  Day,  2  Burr.  827  ;  Alderson  v.  Temple,  4  Burr.  2240;  Lewin 
on  Trusts,  375  (5th  ed.). 

®  Kettle  V.  Hammond,  1  Cook's  B.  L.  108;  Tappenden  v.  Burgess, 
4  East,  239  ;  Lewin  on  Trusts,  375. 


132  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

a  certain  time  a  decree  of  bankruptcy  sliall  be  entered ;  or  if 
the  trustees  did  not  accept  the  deed  or  intend  to  act,  or  if  the 
trustees  induced  the  debtor  to  execute  the  deed.^  The  same 
general  principles  prevail  in  the  United  States  under  the 
national  bankrupt  law.  A  general  assignment  for  the  benefit 
of  creditors  is  an  act  of  bankruptcy,  and  so  is  the  sale  or  mort- 
gage of  a  stock  of  goods  or  property  out  of  the  usual  and 
ordinary  course  of  the  debtor's  business.^  But,  in  order  to 
avoid  the  deed  of  assignment,  there  must 'be  a  debt  due  at  the 
time  of  its  execution  ;  ^  and  the  deed,  though  voidable  by 
creditors  and  assignees  in  bankruptcy,  is  good  between  the 
parties  themselves.* 

§  588.  A  corporation  has  the  same  right  as  a  natural  person 
to  make  assignments  for  the  benefit  of  its  creditors  ;  ^  and  it 
may  make  preferences  among  its  creditors,^  though  grave  doubts 
have  been  raised  whether  it  can  do  any  thing  but  make  an  equal 
division  of  its  property  among  its  creditors  in  case  of  insol- 
vency.''    A  general  assignment  by  a  corporation  of  all  the  prop- 

'  Tappenden  v.  Burgess,  4  East,  230;  Back  v.  Gooch,  4  Camp.  232; 
Holt,  13;  Dutton  v.  Morrison,  17  Ves.  193;  Lewin  on  Trusts,  37G. 

2  See  Brightly's  Annotated  Bankrupt  Law  of  the  United  States,  pp.  72- 
74,  78-80,  and  the  cases  cited  by  him. 

»  Ex  parte  Taylor,  5  De  G.,  M.  &  G.  392;  Ex  parte  Louch,  1  De  G. 
612;  Oswald  v.  Thompson,  2  Exch.  215. 

■*  Bessey  v.  Windham,  6  Q.  B.  166. 

'  Catlin  V.  Eagle  Bank,  6  Conn.  233 ;  Savings  Bank  v.  Bates,  6  Conn. 
506 ;  Dana  v.  Bank  of  the  United  States,  5  Watts  &  S.  224 ;  Hopkins 
V.  Gallatin  Turnpike,  4  Humph.  403 ;  Tower  v.  Bank  of  River  Raisin, 
2  Doug.  530;  App.  12;  6  Humph.  532;  State  of  Maryland  v.  Bank  of 
Maryland,  6  Gill  &  J.  205;  Bank  of  U.  S.  v.  Huth,  4  B.  Mon.  423;  Ex 
parte  Conway,  4  Pike,  305 ;  Ringo  v.  R.  E.  Bank,  13  Ark.  575 ;  Arthur  v. 
Commercial,  &c..  Bank  of  Vicksburg,  9  Sm.  &  M.  396;  De  Ruyter  v.  St. 
Peter's  Church,  3  Barb.  Ch.  119;  3  Comst.  238;  Union  Bank  of  Tennessee 
V.  Ellicott,  6  Gill  &  J.  363.  In  New  York,  a  corporation  has  no  such  right. 
Loring  V.  United  States  Co.  30  Barb.  644. 

«  Ibid. 

■^  Robins  v.  Embry,  1  Sm.  &  M.  Ch.  207;  Montgomery  v.  Commercial 
Bank,  1  Sm.  &  M.  Ch.  632;  Bean  v.  Bullis,  57  Penn.  St.  221. 


§§  587-590.]  FORMS  OF  assignment.  .  133 

erty  with  which  it  does  its  business  is  a  good  cause  for  taking 
away  its  charter  and  ending  its  existence.^ 

§  589.  No  formalities  are  required  in  an  assignment  in  trust 
for  creditors,  if  the  instrument  is  so  constructed  that  the  inten- 
tion of  the  parties  can  be  inferred  from  it.^  In  those  States 
where  there  are  statutes  regulating  such  assignments,  the  in- 
strument must  be  substantially  according  to  the  statute  :  thus 
a  lease  reserving  rent  in  trust  for  creditors  may  be  an  assign- 
ment ;  ^  and  a  power  of  attorney  to  collect  money  and  pay  it  to 
creditors,  in  an  order  named,  is  an  assignment;*  and  a  letter 
sent  to  an  absent  creditor,  assigning  personal  property  for  the 
benefit  of  himself  and  other  creditors,  is  valid  as  an  assign- 
ment.^ But  an  assignment,  directly  to  creditors  to  pay  their 
own  debts,  does  not  come  within  the  rules  respecting  assign- 
ments in  trust,  although  the  surplus  may  go  to  the  debtor.^ 
Nor  is  a  judgment  confessed  to  a  creditor  in  trust  an  assign- 
ment ; "  nor  is  a  mortgage  in  trust  to  pay  debts,  with  or  without 
a  power  of  sale,  an  assignment.^ 

§  590.  A  conveyance  of  all  a  debtor's  property  in  trust,  for 
the  payment  of  all  or  any  number  of  his  creditors,  is  not  within 
the  statute  of  13  Eliz.  c.  5,  or  29  Eliz.  c.  5,  which  makes  void 
all  conveyances  made  to  hinder,  delay,  or  defraud  creditors  ; 
although  the  assignment  may  operate  to  change  the  riglits  of  a 

1  State  V.  Real  Estate  Bank,  5  Pike,  596. 

*  Harvey  v.  Mix,  24  Conn.  406. 

'  Lucas  V.  Sunbury  and  Erie  R.R.  Co.  32  Penn.  St.  458;  Bittenger  r. 
R.R.  Co.  40  Penn.  St.  269. 

*  Watson  V.  Bagaley,  12  Penn.  St.  164. 

*  Dargan  v.  Riuhardson,  1  Clieves,  L.  197;  Shubar  ».  Winding,  1  Chev. 
L.  218. 

«  Henderson's  App.  31  Penn.  St.  502;  Ciiaffees  v.  Risk,  24  Penn.  St. 
432;  Vallance  v.  Miners'  Life  Ins.  Co.  42  Penn.  St.  441. 

'  Guy  V.  Mcllree,  26  Penn.  St.  92;  Lord  v.  Fisher,  19  Ind.  7. 

«  Barker  v.  Hall,  13  N.  H.  298;  Manuf.  and  Mech.  Bank  v.  Bank  of 
Penn.  7  Watts  &  S.  335 ;  Harkrader  v.  Leiby,  4  Ohio  St.  602. 


134  TRUSTS   FOR    CREDITORS.  [CHAP.  XX. 

creditor,  and  may  result  in  delaying  him,^  But  all  such  assign- 
ments will  be  void  if  affected  by  actual  fraud  :  ^  as  if  the  pur- 
pose is  to  hinder,  delay,  and  defraud  the  creditors ;  ^  or  any 
one  or  more  of  them,*  or  if  a  fictitious  debt  is  preferred;^  or 
there  is  the  reservation  of  a  power  of  revoking  tlie  assignment, 
or  tlie  reservation  of  any  other  right  and  power  which  gives 
the  debtor  the  control  of  the  property  ;  ^  or  if  a  clause  is  intro- 
duced which  exempts  the  assignees  from  the  ordinary  duties 
affixed  by  law  to  the  office  of  assignee,  as  that  the  assignees 
shall  not  be  liable  for  any  loss  not  happening  from  their  own 
gross  negligence  or  misfeasance.'^  So  the  selection  of  a  sick, 
weak,  or  incapable  assignee,  or  of  one  at  a  distance  from  the 
locality,  or  of  an  insolvent  person,  or  of  one  of  such  moral  or 
pecuniary  character  as  to  evince  a  purpose  on  the  part  of  the 
debtor  to  keep  the  control  of  the  property,  or  to  render  it  un- 
profitable to  the  creditors,  will  be  strong  evidence  of  fraud  in 
fact,  and  will  avoid  the  assignment.^     The  postponement,  for 

*  Meux  V.  Howell,  4  East,  9 ;  Estwick  v.  Callaud,  5  T.  R.  424 ;  Wilt  v. 
Franklin,  1  Binn.  514. 

'  Twyne's  Ca.  3  R.  80  a ;  Button  v.  Morrison,  17  Ves.  197;  Wilson  v. 
Day,  2  Burr.  827  ;  Hungerford  v.  Earle,  2  Vern.  261 ;  Pickstock  v.  Lyster, 
3  M.  &  S.  371;  Tarback  v.  Marbury,  2  Vern.  510;  Law  v.  Skinner,  W. 
Black.  996  ;  Stone  v.  Grantham,  2  Buls.  218  ;  Worsley  i\  Demattos,  1  Burr. 
467  ;  Wilson  v.  Gray,  2  Stock.  233 ;  Jessup  v.  Hulse,  29  Barb.  539  ;  Gaz- 
zani  V.  Poyntz,  4  Ala.  374. 

3  Sheldon  v.  Dodge,  4  Denio,  218;  Bodley  y.  Goodrich,  7  How.  277; 
Hart  V.  McFarland,  1  Harris,  185. 

*  Knight  V,  Packer,  1  Beasley,  214. 

5  Waters  v.  Comly,  3  Harr.  117;  Webb  v.  Daggett,  2  Barb.  10;  Planck 
V.  Schermerhorn,  3  Barb.  Ch.  644;  Irwin  v.  Keen,  3  Whar.  347.  But  if  a 
creditor  extinguishes  his  claim  by  fraud,  his  share  goes  into  the  residue  for 
the  other  creditors.     Hardcastle  v.  Fisher,*24  Mo.  70. 

«  Whallon  v.  Scott,  10  Watts,  237  ;  Riggs  v.  Murray,  2  John.  Ch.  565; 
15  John.  571 ;  Grover  v.  Wakeman,  11  Wend.  187. 

''  Litchfield  v.  White,  3  Sand.  Ch.  547 ;  Olmstead  v.  Herrick,  1  E.  D. 
Smith,  310;  Hutchinson  v.  Lord,  1  Wis.  286. 

*  Currie  v.  Hart,  2  Sand.  Ch.  251;  Reede  v.  Emery,  8  Paige,  417; 
Connah  v.  Sedgwick,  1  Barb.  211;  Cram  u.  Mitchell,  1  Sand.  251;  Hayes 
V.  Doane,  3  Stock.  84. 


§  590.]  "WHEN   FEAUDULENT.  135 

an  unreasonable  length  of  time,  of  the  sale  of  the  property,  and 
of  the  settlement  of  the  accounts  and  payment  of  the  creditors, 
by  the  trustees  is  evidence  of  fraud, ^  So  is  the  assignment  of 
property  which,  on  the  face  of  the  paper,  the  assignee  is  not 
authorized  to  distribute.^  So  any  unusual  powers  given  to  the 
trustees,  that  may  prejudice  the  claims  of  the  creditors  and 
favor  the  debtor,  will  render  the  settlement  fraudulent ;  as  a 
power  given  to  the  trustees  to  compound  with  the  creditors,  or 
a  rrght  reserved  either  to  the  grantor  or  trustee  to  make  pref- 
erences or  to  alter  them.^  In  some  States,  a  power  to  sell  on 
credit  is  considered  evidence  of  fraud,*  and  so  is  a  power  to 

»  Adluin  V.  Yard,  1  Rawle,  163;  Mitchell  v.  Beal,  8  Yerg.  134.  Three 
years  is  an  unreasonably  long  time.  Adlum  v.  Yard,  id  supra.  The  length 
of  time  which  will  be  reasonable  dejiends  upon  the  nature  and  situation 
of  the  property.  Hafner  v.  Irwin,  1  Ired.  L.  490  ;  Browning  r.  Hart, 
6  Barb.  91 ;  Hardy  v.  Skinner,  9  Ired.  L.  191  ;  Robins  v.  Embry,  1  Sm.  & 
M.  Ch.  205;  Rundlett  v.  Dale,  10  N.  H.  458;  Hardy  v.  Simpson,  13  Ired. 
L.  138 ;  Grover  v.  Wakeman,  11  Wend.  187 ;  Bennett  v.  Union  Bank, 
5  Humph.  612;  Farmers'  Bank  v.  Douglass,  11  Sm.  &  M.  472;  Arthur  v. 
Com.  &  Railw.  Bank  of  Vicksburg,  9  Sm.  &  M.  396;  Henderson  v.  Down- 
ing, 24  Miss.  119.  A  year's  suspension  was  deemed  fraudulent  in  one  case. 
Ward  V.  Trotter,  3  Mon.  1 ;  Johnson  v.  Thweatt,  18  Ala.  745.  In  Pennsyl- 
vania a  year  was  deemed  a  proper  time,  and  a  longer  time  was  deemed 
fraudulent.  Sheener  v.  Lautzerbeizer,  6  Watts,  543 ;  Dana  v.  Bank  of 
U.  S.  5  Watts  &  S.  224;  Abercrombie  v.  Bradford,  16  Ala.  560;  Hodge  v. 
Wyatt,  10  Ala.  271;  Hindman  v.  Dill,  11  Ala.  689;  Lockhart  v.  Wyatt, 
10  Ala.  231.  Three  months  in  most  cases  would  not  be  unreasonably  long; 
Christopher  v.  Covington,  2  B.  Mon.  357.  But  if  the  trustee  may  use  his 
own  discretion,  it  is  void.     DTnvernois  v.  Leavitt,  23  Barb.  63. 

2  Hooper  v.  Tuckerman,  3  Sand.  316. 

'  Wakeman  v.  Grover,  4  Paige,  24;  11  Wend.  187;  Hudson  v.  Maze,  3 
Scam.  579;  Sheldon  v.  Dodge,  4  Denio,  218;  Mitchell  v.  Stiles,  1  Harris, 
306;  Barnum  v.  Hampstead,  7  Paige,  569;  Boardman  v.  Halliday,  10 
Paige,  224;  Strong  v.  Skinner,  4  Barb.  547;  Averill  v.  Loucks,  6  Barb. 
471 ;  Gazzam  v.  Poyntz,  4  Ala.  374  ;  DTnvernois  v.  Leavitt,  23  Barb.  63. 
But  the  assignees  may  compromise  claims  due  to  the  debtor.  White 
V.  Monsarrat,  18  B.  Mon.  809;  Dow  v.  Platner,  16  N.  Y.  562;  Robins  v. 
Embry,  1  Sm.  &  M.  Ch.  207  ;  Bellows  v.  Partridge,  19  Barb.  176  ;  Meacham 
V.  Sternes,  9  Paige,  398. 

*  Musspy  V.  Noyes,  26  Vt.  426;  Sutton  r.  Ilanford,  11  JMich.  513; 
Pierce  v.  Brewster,  32  III.   268;  Page  v.  Olcott,  28  Vt.  465;  Barney  v. 


136  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

mortgage,  or  lease,  or  incumber  the  estate.^  The  trust  may  be 
to  sell  at  either  public  or  private  sale.^ 

§  591.  So  the  reservation  of  a  use  or  benefit  to  the  grantor 
will  render  a  general  assignment  void.  It  is  a  settled  principle 
that  a  reservation  to  the  grantor  or  his  family,  or  to  any  one 
not  a  creditor,  of  any  trust,  profit,  or  benefit  out  of  the  prop- 
erty, or  of  a  credit  on  account  of  any  part  of  it,  is  a  fraud  in 
law,  and  avoids  the  whole  assignment.^  So  a  stipulation  that 
the  grantor  should  retain  the  possession  avoids  the  assignment.^ 

Griffin,  2  Conist.  366;  Nicholson  v.  Leavitt,  2  Seld.  510,  overruling  4  Sand. 
366  ;  Billings  v.  Billings,  1  Cal.  113  ;  Swoyer's  App.  5  Barr,  817  ;  Estate  of 
Davis,  5  Whart,  .'ioO ;  Kellogg  v.  Slauson,  1  Kern.  305  ;  American  Exch. 
Bank  v.  Inloes,  7  Md.  380 ;  Porter  v.  Williams,  5  Seld.  142 ;  Hutchinson  v. 
Lord,  1  Wis.  286  ;  Keep  v.  Sanderson,  2  Wis.  42 ;  Booth  v.  McXair,  11 
Mich.  19  ;  Mower  v.  Hanford,  6  Min.  535.  In  other  States  a  power  to  sell 
on  credit  is  good.  Grinell  v.  Adams,  11  Humph.  85;  Sliackleford  v.  Bank 
of  Mobile.  2  Ala.  238 ;  Abercrombie  v.  Bradford,  16  Ala.  560 ;  Xeally  v. 
Ambrose,  21  Pick.  185 ;  Hopkins  v.  Ray,  1  Met.  79.  A  power  to  convert 
the  estate  into  money,  in  such  convenient  time  as  to  the  assignees  should 
seem  meet,  is  a  power  to  sell  on  credit  and  void.  Woodburn  v.  Mosher, 
9  Barb.  255;  Murphy  v.  Bell,  8  How.  Pr.  Ca.  468.  So  a  power  to  com- 
plete the  manufacture  of  stock,  in  such  manner  as,  in  the  judgment  of  the 
assignees,  to  obtain  the  most  money,  was  void.  Dunham  v.  Waterman,  17 
N.  Y.  9.  But  to  sell  for  the  best  interests  of  the  parties  is  not  a  power  to 
sell  on  credit.  Whitney  v.  Krows,  11  Barb.  200;  Kellogg  v.  Slauson, 
1  Kern.  302 ;  Maennel  v.  Murdock,  13  Md.  164 ;  Clark  v.  Fuller,  21  Barb. 
128;  Nichols  v.  McEwen,  21  Barb.  65;  Ely  v.  Hair,  16  B.  Mon.  230.  If 
there  is  no  power  in  the  assignment  to  sell  on  credit,  but  the  trustee  sells  on 
credit,  the  assignment  is  not  void.     Small  v.  Ludlow,  20  N.  Y.  155. 

^  Planck  r.  Schermerhorn,  3  Barb.  Ch.  644;  Barnum  v.  Hempstead, 
7  Paige,  568. 

*  Bellows  V.  Partridge,  19  Barb.  176. 

'  Thomas  v.  Jcnks,  1  Amer.  Lead.  Ca.  69  ;  ^lackie  v.  Cairns,  5  Cow. 
549;  Jackson  v.  Parker,  9  Cow.  73;  Byrd  v.  Bradley,  2  B.  Mon.  239; 
Kissam  v.  Edmundson.  1  Ired.  Eq.  180;  Goodrich  v.  Downs,  6  Hill,  438; 
Farmer  v.  Lesley,  6  Barr,  121;  Shaffer  v.  Watkins,  7  Watts  &  S.  219; 
Leadman  r.  Harris,  3  Dev.  144  ;  Mead  v.  Phillips,  1  Sand.  83 ;  Anderson  v. 
Fuller,  1  Mc:\Iul.  Eq.  27  ;  McAllister  v.  Marshall,  6  Binn.  338 ;  Peacock  v. 
Tompkins,  Meigs,  317;  Austin  v.  Johnson,  7  Humph.  19L 

*  Twyne's  Case,  3  R.  80  b ;  1  Smith  Lead.  Ca.  1,  and  notes;  Dewey  v. 
Adams,  4  Edw.  Ch.  21 ;  Connah  r.  Sedgwick,  1  Barb.  210;  Rogers  v.  VaiL 
16  Yt.  329  ;  Caldwell  v.  Williams,  1  Cart.  405. 


§§590,591.]  WHEN    FRAUDULENT.  137 

But  in  many  States  the  possession  by  the  assignor  of  the  prop- 
erty after  tlie  assiunment  is  only  evidence,  more  or  less  strin- 
gent, of  fraud  under  the  circumstances  of  each  case,  and  may 
be  explained.^  A  stipulation  for  the  maintenance  of  the  grantor 
or  his  family,  or  that  tl)e  grantor  sliall  be  employed  to  manage 
and  dispose  of  the  property  at  a  fixed  salary ,2  or  the  reservation 
of  a  fixed  sum  of  money,  or  of  so  much  a  year,  avoids  the  assign- 
ment.^    An  express  reservation  of  the  sur[)lus  to  the  grantor, 

'  In  Massachusetts,  suih  stipulations  are  not  fraudulent.  Baxter  v. 
Wheeler,  9  Pick.  21;  Foster  v.  Saco  Manuf.  Co.  12  Pick.  451.  If  the 
assignment  is  good  on  its  face,  it  is  not  void  for  an  illegal  act  done  after- 
wards, as  the  assignor's  carrying  away  a  bag  of  $5,000  in  gold,  unless  the 
assignment  was  executed  with  a  fraudulent  intent.  Wilson  v.  Forsyth,  24 
Barb.  105.  Perhaps,  in  most  States,  the  retention  of  the  possession  by  the 
assignor  is  only  evidence  <  f  fraud,  and  not  in  itself  fraud.  Brooks  v.  Mar- 
bury,  11  Whi-at.  82;  Vernon  v.  Morton,  8  Dana,  247;  Pike  v.  Bacon, 
8  Shep.  280  ;  Osborne  v.  Fuller,  14  Conn.  530 ;  Strong  v.  Carrier,  17  Conn. 
239 ;  Klapp  v.  Shurk,  13  Peiin.  St.  589 ;  Fitler  v.  Maitland,  5  Watts  &  S. 
307 ;  Dallam  v.  Fitler,  6  Watts  &  S.  323 ;  Dewey  v.  Littlejohn,  2  Ired.  Eq. 
495:  Christopher  v.  Covington,  2  B.  Mon.  357;  Hardy  v.  Skinner,  9  Ired. 
L.  191;  Ravisics  w.  AUston,  5  Ala.  297;  Darwin  v.  Ilandley,  3  Yer.  502; 
Barker  v.  Hall,  13  N.  H.  298;  Shackleford  v.  Bank  of  Mobile,  22  Ala. 
238;  Lockhart  v.  Wyatt,  10  Ala.  231. 

^  Johnson  v.  Harvey,  2  Pen.  &  Watt.s,  82;  McClug  v.  Lecky,  3  Pen.  & 
Watts,  83;  Henderson  v.  Downing,  24  Mis.  117. 

3  Mackie  v.  Cairns.  5  Cow.  549 ;  Butler  v.  Van  Wyck,  1  Hill.  463 ; 
Goodrich  v.  Downs,  6  Hill,  440,  overruling  Riggs  r.  IMurray,  2  John.  Ch. 
565,  15  John.  571,  and  Austin  v.  Bell.  20  .John.  442;  Harris  v.  Sumner,  2 
Pick.  129;  Richards  v.  Hazzards,  1  Stew.  &  Por.  139.  A  reservation  of  so 
much  as  is  allowed  by  law  avoiils  the  deeil  in  Tennessee,  Sugg  v.  Tillman, 
2  Swan.  210;  but  not  in  Pennsylvania,  Mulford  v.  Sliurk,  28  Penn.  St.  473. 
But  the  courts  will  be  governed  by  circumstances,  and  the  intent  of  the 
parties,  in  determining  whether  certain  reservations  are  fraudulent,  as  if  the 
sum  is  small  and  reasonable.  Canal  Bank  v.  Cox,  6  Me.  395  ;  Skipwith  v. 
Cunningham,  8  Leigh,  272  ;  Kevan  v.  Branch,  1  Grat.  275.  Tiie  trustees 
may  employ  the  assignor,  at  reasonable  compensation,  to  assist  in  disposing 
of  the  property.  Shattuck  v.  Freeman,  1  Met.  10;  Vernon  r.  Morton,  8 
Dana,  247  ;  Pearson  v.  Rockhill,  4  B.  Mon.  296  ;  Bank  of  Mobile  v.  Clark, 
7  Ala.  765;  Jones  v.  Whitbriad,  11  C.  B.  406;  Fitler  v.  Maitland.  5  Watts 
&  S.  307;  Nicholson  v.  Leavitt,  4  San<l.  270;  Mulford  r.  Shurk,  28  Penn. 
St.  473.    So  the  trustees  may  employ  other  agents  in  managing  the  property. 


138  TRUSTS   FOR   CREDITORS.  [CHAP.  XX. 

upon  a  partial  assignment  for  a  portion  of  the  creditors,  renders 
the  assignment  void.^  So  it  is  said  that  an  express  reservation 
of  the  surplus,  in  a  general  assignment,  renders  it  void.^  On 
the  other  hand,  it  has  been  held  that  the  reservation  of  the  sur- 
plus, after  paying  all  tlie  creditors,  is  only  wliat  the  law  implies, 
and  is  therefore  not  void.^  But  all  secret  reservations  are 
fraudulent.*  If  the  assignor  secretly,  and  without  the  knowl- 
edge of  the  general  creditors,  pays  extra  money,  or  gives  a 
special  advantage  to  some  particular  creditor  to  procure  his 
assent  to  the  assignment,  or  to  secure  his  influence  with  the 
other  creditors  in  gaining  their  assent  or  discharge,  such  as'sign- 
ment  will  be  illegal  and  void,  as  a  fraud  upon  the  general 
creditors  ;  and  if  the  general  creditors  have  signed  a  release 
of  their  claims,  such  release  will  be  no  bar  to  an  action  against 
the  debtor.^  If  such  creditor  has  taken  notes  or  other  securi- 
ties from  the  debtor,  as  an  extra  consideration  for  assenting  to 
such  assignment,  such  notes  and  securities  are  void.^ 

§  592,  A  condition  in  a  deed  of  assignment,  requiring  the 
creditors  to  release  the  assignor  from  all  claims  before  receiv- 

Hennessey  v.  Western  Bank,  6  Watts  &  S.  300;  Kelly  v.  Lank,  7  B.  Mon. 
220;  Coates  v.  Williams,  7  Exch.  208 ;  Peck  v.  Whiting,  '^1  Conn.  206. 
The  trustee  may  act  and  convey  by  attorney.  Blight  v.  Schenck,  10  Barr, 
285;  Maennel  v.  Murdock,  13  Md.  164;  Gillespie  v.  Smith,  22  111.  473. 

'  Doremus  v.  Lewis,  8  Barb.  124 ;  Suidam  v.  Martin,  Wright,  698 ; 
Goodrich  v.  Downs,  6  Hill,  438;  Strong  v.  Skinner,  4  Barb.  547;  Cole  v. 
Jessup,  4  Barb.  307  ;  GrifBn  v.  Barney,  2  Comst.  365  ;  Leitch  v.  HoUister, 
4  Comst.  214;  Dana  v.  Lull,  17  Vt.  390. 

*  Ibid. 

■"  Hall  V.  Denison,  17  Vt.  311  ;  Ely  v.  Cook,  18  Barb.  612 ;  Beatty  v. 
Davis,  9  Gill,  213  ;  Rahn  v.  McElrath,  6  Watts,  151 ;  Hindman  v.  DilU  11 
Ala.  689 ;  Austin  v.  Johnson,  7  Humph.  191. 

*  M'Cullock  V.  Hutchinson,  7  Watts,  434;  Smith  v.  Lowell,  6  N.  H.  67; 
Smith  V.  Smith.  11  N.  H.  460. 

5  Mare  v.  Sandford,  1  Gif.  288;  Case  v.  Gerrish,  15  Pick.  50;  Ramsdell 
V.  Edgarton,  8  Met.  227;  Lothrop  v.  King,  8  Cush.  382;  Partridge  v.  Mes- 
ser,  14  Gray,  180. 

e  Ibid. 


§§  591,  592.]  WHEN    FRAUDULENT.  139 

ing  any  benefit  under  the  deed,  the  surplus  returning  to  the 
debtor,  and  not  to  the  non-releasing  creditors,  renders  the  deed 
fraudulent  and  void ;  and  such  a  stipulation,  as  a  condition  of 
preference,  although  the  only  effect  is  to  postpone  the  non- 
releasing  creditors  to  a  share  of  the  surplus,  renders  the  assign- 
ment void.  The  principle  is,  that  although  preferences  are 
allowed,  yet  the  appropriation  of  the  property  to  the  creditors 
must  be  absolute  and  unconditional,  and  a  trust  which  coerces 
the  creditors  into  a  relinquishment  of  part  of  their  claims,  in 
order  to  enjoy  any  benefit  under  the  deed,  is  fraudulent  and 
void,  although  no  portion  of  the  surplus  may  go  to  the  grantor. ^ 

'  Doe  V.  Scribner,  41  Me.  277  ;  Owen  v.  Arvis,  2  Dutch.  23  ;  Miller  v. 
Conklin,  17  Ga.  430;  Goddard  v.  Hapgood,  ib  Vt.  351  ;  Green  v.  Trieber, 
3  Md.  13  ;  Hyslop  v.  Clarke,  14  John.  458;  Austin  v.  Bell,  20  John.  442; 
Wakeman  v.  Grover,  4  Paige,  24;  11  Wend.  187;  Goodrich  v.  Downs,  6 
Hill.  438;  Hafner  v.  Irwin,  1  Ired.  L.  490;  Robins  v.  Embry,  1  Sm.  &  M. 
Ch.  208;  Whallon  v.  Scott,  10  \yatts,  237;  Hastings  v.  Belknap,  1  Denio, 
197;  Atkinson  v.  Jordan,  5  Ham.  293;  Woolsey  v.  Verner,  Wrijiht,  606; 
Barrett  v.  Reids,  Wright,  701  ;  B  own  v.  Knox,  6  Mo.  302;  Drake  v. 
Rogers,  6  Mo.  317;  Ingraham  v.  Wheeler,  6  Conn.  277;  Howell  v.  Edgar, 
3  Scam.  417  ;  Ramsdell  v.  Sigerson,  2  Gill,  78  ;  Swearingin  v.  Slicer,  5  Mo. 
241;  The  Watchman,  Ware,  232;  Todd  v.  Buckman,  2  Fairf.  41  ;  Pearson 
V.  Crosby.  23  Me.  261 ;  Hurd  v.  Silsbee,  10  N.  H.  108 ;  Nivlon  v.  Douglass, 
2  Hill,  Ch.443;  Jacot  v.  Corbett,  1  Cheves,  Ch.  71;  Grimshaw  v.  Walker, 
12  Ala.  101 ;  Brown  v.  Lyon,  17  Ala.  659;  West  v.  Snodgrass,  17  Ala.  549; 
Fox  V.  Adams,  5  Me.  245 ;  Ashurst  v.  Martin,  9  Porter,  567  ;  McCall  v. 
Hinkk'y,  4  Gill,  129.  In  the  early  cases  in  Alabama,  such  a  condition  was 
held  not  to  vitiate  the  assignment.  Gazzam  v.  Poyntz,  4  Ala.  374 ;  Wiswall 
V.  Ticknor,  6  Ala.  179.  In  Pennsylvania,  Virginia,  South  Carolina,  Massa- 
chusetts, and  Rhode  Island,  such  conditions  have  been  held  to  be  good,  and 
not  to  vitiate  the  deeds  of  assignments.  Lippincott  v.  Barker,  2  Binn.  174; 
Livingston  v.  Ball,  3  Watts,  198;  Bayne  r.  Wylie,  10  Watts,  309:  Mechan- 
ics' Bank  v.  Gorman,  8  W.  &  S.  304;  Pierpont  v.  Graham,  4  Wash.  232; 
Skipwith  V.  Cunningham,  8  Leigh,  272;  Kevan  v.  Branch,  1  Grat.  275 ; 
Nivlon  V.  Douglass,  2  Hill,  Ch.  443;  Le  Prince  v.  Guillemont,  1  Rich.  Eq. 
187 ;  Br&shear  v.  West,  7  Pet.  609 ;  Dana  v.  Bank  of  U.  S.  5  W.  &  Sar. 
224 ;  Borden  v.  Sumner,  4  Pick.  265 ;  Andrew  v.  Ludlow,  5  Pick.  28 ;  Nos- 
trand  v.  Atwood,  19  Pick.  281  ;  Canal  Bank  v.  Cox,  6  Me.  395;  Curtis  v. 
Leavitt,  15  N.  Y.  9;  Halsey  v.  Whitney,  4  Mason,  207.  A  release  by  a 
separate  deed,  not  part  of  the  assignment,  does  not  avoid  the  assignment. 
Renard  v.  Graydon,  39  Barb.  548;  Nightingale  t'.  Harris,  6  R.  L  321; 
Livermore  v.  Jenckes,  21  How.  126. 


140  TRU9T3    FOR   CREDITORS.  [CHAP.  XX. 

An  assignment  to  a  trustee  of  part  of  a  debtor's  property,  on 
condition  of  a  full  release,  is  fraudulent  everywhere.^  A  void 
assignment  may  be  remedied  by  an  additional  assignment,^  but 
it  cannot  be  helped  by  parol  evidence.^ 

§  593.  In  England,  a  voluntary  assignment  to  a  trustee  for 
creditors,  not  communicated  to  them,  and  they  not  being  par- 
ties thereto  and  privy  to  its  execution,  conveys  a  mere  power 
or  agency  to  the  trustees,  which  may  be  altered  or  revoked  at 
the  will  of  the  assignor.  The  creditors,  though  named  in  the 
deed,  cannot  enforce  the  trust  against  the  assignor  or  trustee  ;* 
but  it  is  said  that  the  communication  of  the  trust  by  the  trus- 
tees to  the  creditors  takes  away  the  power  to  revoke  it,^  and  if 
the  trustees  have  made  payments  or  advances,  they  are  entitled 
to  possession  of  the  property  until  they  are  reimbursed.^  If 
the  deed  declares  that  it  shall  be  void  unless  executed  by  all  the 
creditors  within  a  certain  time,  yet  it  is  not  void  in  equity  if 
the  creditors  accept  and  act  under  it,  though  it  is  not  signed  by 
them.'^     And  even  though  one  of  the  trustees  does  not  sign  the 

^  Seavlngw.  BrlnkerhofF,  5  John.  Cli.  329;  Skipwith  v.  Cunningham,  8 
Leigh,  272;  Le  Prince  v.  Guillemont,  1  Rich.  Eq.  187;  Jacot  v.  Corbett,  1 
Cheves,  Ch.  71.  This  question  was  left  open  in  Nostrand  v.  Atwood,  19 
Pick.  284;  Fassit  v.  Phillips,  4  Wharton,  399;  Thomas  v.  Jenks.  5  Rawle, 
221;  1  Am.  Lead.  Ca.  70;  Hennessey  v.  Western  Bank,  6  Watts  &  Ser. 
301;  Sangston  v.  Gaither,  3  Md.  41 ;  Green  v.  Trieber,  3  Md.  11. 

*  Merrill  v.  Englesby,  2  Vt.  150. 

'  Inloes  V.  American  Ex.  Bank,  11  Ind.  173  ;  Grosthen  v.  Page,  6  Cal. 
138;  Hampstead  v.  Johnston,  18  Ark.  123. 

*  La  Touch  v.  Lacom,  7  CI.  &  Fin.  772  ;  Walwyn  v.  Coutts,  3  Mer.  707; 
3  Sim.  14;  Page  v.  Broom,  4  Russ.  6  ;  Garrard  v.  Lauderdale,  3  Sim.  1 ;  2 
R.  &  M.  451 ;  ^ill  r.  Cureton,  2  M.  &  K.  511;  Siunnonds  v.  Pallas.  2  Jo. 
&  La.  8  Ir.  Eq.  335,  489 ;  Griffiths  v.  Ricketts,  7  Hare,  307 ;  Siggers  v. 
Evans,  22  Eng.  L.  &  Eq.  139  ;  Nicholson  v.  Tutin,  2  K.  &  J.  18  ;  Wilding  v. 
Richards,  1  Coll.  659;  Kirwan  v.  Daniel,  5  Hare,  499;  Evans  v.  Bagwell, 
2  Con.  &  Law.  616  ;  4  Dru.  &  War.  898 ;  Brown  v.  Cavendish,  1  Jo.  &  La. 
635;  Synnot  v.  Simpson,  5  H.  L.  Ca.   141. 

6  Acton  V.  Woodgate,  2  M.  &  K.  495.       «  Hind  v.  Blake,  3  Beav.  234. 
'  Spottiswood  r.  Stockdale,  Coop.   104  ;  Dunch  v.  Kent,   1  Vern.  260. 
The  creditor  must  put  himself  in  the  same  relation  as  if  he  had  signed  the 


§§  592,  593.]  WHEN    REVOCABLE.  141 

deed,  it  is  good  at  law  as  well  as  in  equity.^  If  the  deed  itself 
declares  that  it  is  made  for  those  only  who  lecome  parties  to  it, 
only  those  who  become  parties  can  claim  any  thing  under  it;- 
thoiigh  it  has  been  held  that  they  need  not  sign  it,  if  they  per- 
form all  its  conditions,  and  take  no  step  inconsistent  with  it.^ 
In  the  United  States  the  rule  is  different.  If  an  assignment, 
not  fraudulent,  is  made  to  trustees  for  the  benefit  of  creditors, 
their  assent  is  not  necessary  ;  or  their  assent  will  be  presumed 
in  all  cases,  if  it  is  for  their  benefit,  and  contains  no  unusual 
clauses  or  restrictions.'*  A  debtor  cannot  revoke  the  assign- 
deed.  Forbes  v.  Limond,  4  De  G.,  M.  &  G.  298.  And  within  the  time  fixed, 
if  there  is  a  limit  of  time  within  which  he  must  execute  the  assignment, 
or  assent  thereto.  Halsey  v.  Whitney,  4  Mason,  206 ;  Aston  v.  Woodti^ate, 
2  M.  &  K.  492  ;  Phoenix  Bank  v.  Sullivan,  9  Pick.  410;  De  Caters  r.  Cliau- 
mont,  9  Paige,  490.  The  creditors  are  not  necessarily  excluded  if  they  do 
not  come  in  within  the  prescribed  time,  as  they  may  show  reasons  why  they 
should  not  be  excluded.  See  cases  before  cited.  Tennant  v.  Stoney,  1 
Rich.  Eq.  222 ;  Hosack  v.  Rogers,  6  Paige,  415 ;  Nicholson  v.  Tutin,  2  K. 
&  J.  18;  Watson  v.  Knight,  19  Beav.  369;  Pierpont  v.  Graham,  4  Wash. 
C.  C.  232 ;  Stoddart  v.  Allen,  1  Rawle,  258  ;  Dcdham  Bank  v.  Richards,  2 
Met.  105;  Furman  v.  Fisher,  4  Cold.  626.  But  if  tlie  time  within  which 
creditors  are  to  come  in  is  unreasonably  short,  the  assignment  will  be  fraud- 
ulent and  void.  Brashear  v.  West,  7  Pet.  609  ;  Vaughn  v.  Evans,  1  Hill, 
Ch.  414;  Vernon  v.  Morton,  8  Dana,  447;  Skipwith  v.  Cunningham,  8 
Leigh,  272;  Biron  v.  Mount,  24  Beav.  642;  Lancaster  v.  Elce,  31  Beav. 
325.  If  a  third  party  conveys  property  in  trust  for  a  debtor's  liabilities, 
ordy  those  creditors  can  avail  themselves  of  the  fund  who  come  strictly 
within  the  terms  of  the  trust,  and  execute  the  assignment  and  comply  with 
all  its  conditions.     Williams  v.  Moslyn,  33  L.  J.  Ch.  54. 

'  Small  V.  Marwood,  9  B.  &  Cr.  360;  Good  v.  Cheesman,  2  B.  &  Ad. 
328. 

*  Garrard  v.  Lauderdale,  3  Sim.  1 ;  Balfour  y.  Welland,  16  Ves.  151. 
'  Field  V.  Donoughmore,  1  Dr.  &  War.  227. 

*  Nicoll  V.  Mumford,  4  John.  Ch.  52.> ;  Cunningham  r.  Freeborn,  11 
Wend.  241 ;  Houston  v.  Nowland,  7  Gill  &  J.  480;  Bank  of  U.  S.  v.  Huth, 
4  B.  Mon.  423;  Smith  v.  Leavitt,  10  Ala.  93;  Kinnard  v.  Thompson,  12 
Ala.  487  ;  Governor,  &c.  r.  Campbell,  17  Ala.  566 ;  Rankin  v.  Duryer,  21 
Ala.  392  ;  Klapp  v.  Shurk,  1  Harris,  539;  Ilarland  v.Binks,  15  Adol.  &  El. 
(n.  s.)  721;  Brooks  v.  Marbury,  11  Wheat.  78;  Brown  v.  Minttirn,  2 
Galli.  557  ;  Wheeler  v.  Sumner,  4  Mason,  183;  Halsey  r.  Whitney,  4  ALi- 
son,  206;  New  England  Bank  v.  Lewis,  8  Pick.  113;  Ward  r.  Lewis,  4 
Pick.  518;  North  v.  Turner,  9  Ser.  &  R.  244;  Wiley  v.  Collins,  2  Fuirfc 


142  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

ment  where  the  property  has  vested  in  the  trustees,  or  the 
creditors  have  had  notice  of  it,  or  any  of  the  trusts  have  been 
performed.^  The  English  rule  prevailed  in  Massachusetts 
before  the  court  had  jurisdiction  in  equity  over  such  assign- 
ments ;  ^  but  after  the  Act  of  1836,  c.  238,  the  assent  of  cred- 
itors was  not  necessary.^  If  the  conveyance  is  made  directly 
to  the  creditors,  in  consideration  of  the  debts  due  them,  their 
assent  to  the  conveyance  is  necessary ;  but  it  may  be  presumed 
under  some  circumstances.^  If  the  assignment  is  made  to  a 
trustee  not  present,  his  assent  will  be  presumed  ;  and  the  deed 
will  take  effect  from  its  tlelivery,  subject  to  be  defeated  by  the 
refusal  of  the  trustee.^  But  if  there  is  any  doubt  concerning 
the  trustee's  acceptance,  all  liens  put  upon  the  property  during 
such  delay,  and  before  the  trustee  actually  ^accepts,  will  take 
preference  of  the  deed  of  assignment.^ 

§  594.  As  soon  as  an  assignee  accepts  a  general  assignment 
for  the  payment  of  debts  to  creditors,  either  directly  or  by 
implication,  he  becomes  a  trustee  for  them ;  and,  as  soon  as 
they  have  notice,  they  may  compel  the  execution  of  the  trust 

193;  Wilt».  Franklin,  1  Binn.  502;  Reinhard  v.  Bank  of  Kentucky,  6  B. 
Mon.  252 ;  Moses  v.  Murgatroyd,  1  John.  Ch.  129  ;  Neilson  v.  Blight,  1 
John.  Ca.  205  ;  Weston  v.  Barker,  12  John.  281  ;  4  Kent,  307  ;  Marigny  v. 
Remy,  15  Martin,  La.  607;  Gray  v.  Hill,  10  Serg.  &  R.  436;  De  Forrest 
«.  Bacon,  2  Conn.  633;  Rankin  v.  Lodor,  21  Ala.  380;  Stewart  v.  Hall,  3 
B.  Mon.  218. 

'  Robertson  v.  Siiblett,  6  Humph.  313;  Lawrence  v.  Davis,  3  McLean, 
177  ;  Petriken  v.  Davis,  1  Morris,  296. 

2  Russell  V.  Woodward,  10  Pick.  408 ;  Stephens  v.  Bell,  6  Mass.  339 ; 
Widgery  v.  Haskt^U,  5  Mass.  144. 

^  Shattuck  V.  Freeman,  1  Met.  10. 

^  Tompkins  v.  Wheeler,  16  Pet.  106  ;  Nicoll  v.  Mumford,  4  John.  Ch. 
522. 

5  Wilt  V.  Franklin,  1  Binn.  502;  McKinney  v.  Rhoades,  5  Watts,  343; 
Skipwith  V.  Cunningham,  8  Leigh,  272;  Merrill  r.  Swift,  18  Conn.  257; 
Ward  w.  Lewis,  4  Pick.  518  ;  Moore  v.  Collins,  3  Dev.  126 ;  Read  v.  Rob- 
inson, 6  Watts  &  S.  329;  Dargan  v.  Richardson,  1  Cheves,  L.  197  ;  Shubar 
V.  Winding,  1  Cheves,  L.  218. 

«  Crosby  v.  HiUyer,  24  Wend.  280. 


§§  593-595.]  HOW  enforced.  143 

in  a  court  of  equity.^  In  bringing  a  bill  to  seek  the  benefit  of 
such  an  assignment,  all  the  creditors  must  join  in  the  suit,  or 
one  may  sue  in  behalf  of  the  others,  who  may  come  in  and 
join  him.  Such  bill  must  be  brought  for  the  enforcement  of 
the  trust  generally,  and  for  a  sale  of  the  property,  the  settle- 
ment of  the  accounts,  and  the  payment  of  all  the  debts :  a 
decree  for  the  payment  of  a  single  debt  would  be  erroneous."'^ 
But  if  the  bill  is  to  set  aside  the  assignment  for  any  reason,  a 
single  creditor  may  maintain  it.^  As  a  general  rule,  if  the 
assignment  is  set  aside  and  a  receiver  appointed,  or  the  court 
orders  the  estate  to  be  settled,  claims  will  be  paid  j^ari  passu  ; 
but  some  creditors  may  have  obtained  legal  preferences  at  law, 
and  in  such  case  the  court  will  order  them  to  be  paid  according 
to  their  priority.* 

§  595.  In  a  suit  to  enforce  the  trust  under  an  assignment, 
the  trustee  must  be  brought  before  the  court ;  and  a  proceed- 

'  Moses  V.  Mui-gatroycl,  1  John.  Ch.  119  ;  Shepherd  v.  McEvcrs,  4  John. 
136;  Hulse  v.  Wright,  Wright,  61;  Pingree  v.  Comstock,  18  Pick.  46; 
Weir  V.  Tannehill,  2  Yerg.  67  ;  NicoU  v.  Mumford,  4  John.  Ch.  523  ;  Ward 
».  Lewis,  4  Pick.  518;  New  Eng.  Bank  r.  Lewis,  8  Pick.  113;  Robertson 
V.  Sublett,  G  Humph.  313;  Pearson  v.  Kockhill,  4  Mon.  2'J6 ;  Kelley  v. 
Babrock,  49  N.  Y.  320. 

=*  Atherton  v.  Worth,  1  Dick.  375;  McDougald  v.  Douglierty,  11  Ga. 
670;  Wakeman  v.  Grover,  4  Paige,  24;  Bryant  v.  Russell,  23  Pick.  523; 
Edmeston  v.  Lyde,  1  Paige,  637;  Hamilton  v.  Houghton,  2  Bligli,  P.  C.  169; 
Reynohls  v.  Bank  of  Va.  6  Gratt.  174;  Fisher  v.  Worth,  1  Busb.  Eq.  63. 
But  where  one  creditor  filed  a  bill  when  no  claim  had  been  made  for  twenty 
years,  and  the  trustee  had  stated  that  all  the  other  creditors  had  been 
satisfied,  he  was  allowed  to  maintain  his  bill.  Mumford  v.  Murray,  6  John. 
Ch.  1. 

^  Russell  V.  Lasher,  4  Barb.  233;  Wakeman  v.  Grover,  4  Paige,  24; 
Stout  V.  Higbee,  4  J.  J.  Marsh.  632.  In  Ohio,  the  creditor  that  procures 
the  assignuient  to  be  set  aside  obtains  a  priority  in  the  distribution  of  the 
assets.  Atkinson  v.  Jordan,  Wright,  247.  The  Rev.  Statutes  of  N.  Y. 
are  to  the  same  effect.  Corning  v.  White,  2  Paige,  567;  Burrall  v.  Leslie, 
6  Paige,  445  ;  Lucas  v.  Atwood,  2  Stew.  378. 

*  Gracey  v.  Davis,  3  Strob.  Eq.  58;  Austin  v.  Bell,  20  John.  442; 
McDermutt  v.  Strong,  4  John.  Ch.  687;  McMeekin  v.  Edmonds,  1  Hill,  Eq. 
293;  Codwise  v.  Gelston,  10  John.  519;  LePrince  v.  Guillemont,  1  Rich, 
Eq.  220. 


144  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

ing  without  notice  to  him  would  be  erroneous.^  If  the  assign- 
ment is  unconditional,  the  assignor,  his  heirs  or  representatives, 
need  not  be  made  parties  ;  ^  but  if  there  is  an  express  stipula- 
tion that  the  surplus  shall  be  paid  to  the  assignor,  he  or  his 
representatives  must  be  parties.^  So  if  the  trust  to  pay  debts 
is  created  under  a  will,  the  heir  of  the  testator  must  be  made 
a  party  to  a  suit.*  A  creditor  may  maintain  a  suit  in  behalf  of 
such  creditors  as  may  join  him  against  the  assignees,  for  an 
administration  of  the  trust ;  and,  upon  public  notice  being  given 
for  creditors  to  come  in  and  prove  their  claims,  all  creditors 
will  be  barred,  although  they  may  have  had  no  actual  notice.^ 

§  596.  As  a  matter  of  course,  mortgagees,  judgment  cred- 
itors, and  all  others,  having  a  lien  upon  the  trust  property  prior 
to  the  assignment,  are  not  affected  by  it.  Their  rights  remain 
as  before  the  assignment ;  and  an  attachment  or  any  lien  that 
is  fastened  upon  the  property  after  the  assignment  is  made, 
but  before  it  is  accepted  by  the  trustee,  takes  preference  of  the 
assignment.^  A  creditor  as  one  of  the  cestuis  que  trust  may  be 
a  trustee ;  ^  in  such  case  he  has  no  power  to  prefer  his  own 
claim,  but  must  take  equally  with  the  others,  unless  by  the 
terms  of  the  deed  a  preference  is  given  liim.^  By  accepting 
the  trust  according  to  its  terms,  a  creditor  trustee  waives  all 

^  Hamilton  v.  Houghton,  2  Bligh,  169  ;  Roiith  v.  Kinder,  3  Swans,  144,  n. 

*  Hobart  v.  Andrews,  21  Pick.  632. 
'  Houghton  V.  Davis,  23  Me.  28. 

*  Harris  v.  Ingledew,  3  P.  Wms.  93. 

*  Kerr  v.  Blodgett,  48  N.  Y.  62. 

«  Crosby  v.  Hillyer,  24  Wend.  280;  Codwise  v.  Gelston,  10  John.  617; 
Hays  V.  Heidelberg,  9  Barr,  203;  Hogan  v.  Strayhorn,  65  N.  C.  279; 
Bloomer  v.  Waldron,  3  Hill,  367. 

''  Balfour  v.  Welland,  16  Ves.  161;  Boazman  v.  Johnson,  3  Sim.  377; 
Acton  V.  Woodgate,  2  M.  &  K.  49 ;  Siggers  v.  Evans,  32  Eng.  L.  &  Eq. 
139. 

8  Boazman  v.  Johnson,  3  Sim.  382;  Anon.  2  Ch.  Ca.  64;  Child  v.  Ste- 
phens, 1  Eq.  Ca.  Ab.  141 ;  1  Vern.  102;  Garrard  v.  Lauderdale,  3  Sim.  1 ; 
Miles  V.  Bacon,  4  J.  J.  Marsh.  46S;  Harrison  v.  Mock,  10  Ala.  185. 


§§  595-597.]  HOW  enforced.  145 

claims  and  liens  upon  the  property  inconsistent  with  the  deed.^ 
But  it  is  said,  that  the  rule  which  prohibits  a  trustee  from 
acquiring  an  interest  adverse  to  his  cestui  que  trust  does  not 
apply  to  a  bona  fide  creditor  who  has  become  trustee  ;  and 
that  such  trustee  may  purchase  a  judgment  against  his  cestui 
que  trust?  But  the  fact  that  the  trustee  is  a  bona  fide  creditor, 
ignorant  of  any  fraud,  will  not  prevent  the  assignment  from 
being  declared  void,  if  it  is  fraudulent  upon  any  legal  grounds.^ 
So  creditors  who  accept  the  benefits  conferred  under  such  deed, 
and  receive  dividends  or  other  advantages  thereby,  cannot  set 
up  rights  inconsistent  with  the  deed ;  nor  can  they,  after  re- 
ceiving such  advantages,  impeach  it,  and  procure  it  to  be  set 
aside,  but  they  must  comply  with  its  provisions.*  The  assignee 
of  an  insolvent  affirms  a  fraudulent  sale  made  by  his  assignor 
by  suing  the  fraudulent  purchaser  for  the  price.^  A  creditor, 
before  he  can  commence  process  to  set  aside  a  fraudulent 
assignment  or  conveyance,  must  first  obtain  judgment  on  liis 
claim.^ 

§  597.  When  an  assignment  is  made  and  executed,  and 
all  parties  assent  that  the  estate  shall  be  managed  and 
settled  by  trustees,  the  deed  that  vests  the  estate  in  the  trus- 
tees, for  the  payment  of  the  debts,  may  prescribe  the  manner 
of  carrying  the  trust  into  execution,  and  paying  the  debts." 
These  directions  may  be  contrary  to  law,  and  may  be  set  aside 
on  proceedings  had  for  that  purpose,  yet  if  all  i)arties  proceed 
under  the  deed,  the  trustees  must  find  their  power  in  the  deed 

'  Harrison  v.  Mock,  10  Ala.  185. 

^  Prevost  V.  Gratz,  Peters,  C  C.  373. 

'  Rathburn  v.  Platner,  18  Barb.  272. 

*  Adliim  V.  Yard,  1  Rawle,  163;  Gutzwiller  v.  Lackman,  23  Mis.  168; 
Pratt  V.  Adams,  7  Paige,  615;  Burrows  v.  Alter,  7  Miss.  424:;  Jewett  v. 
Woodward,  1  YaIw.  Cb.  195;  Laiiahau  v.  Latrobe,  7  Md.  268. 

5  Butler  V.  Ilildreth,  5  Met.  49. 

^  Neustadt  v.  Joel,  2  Duer,  532. 

'  Boazman  v.  Johnston,  3  Sim.  381;  Carr  v.  Burlington,  1  P.  Wnis.  229. 

VOL.  II.  10 


146  TRUSTS    FOR    CEEDTTORS.  [CHAP.  XX. 

of  assignment  or  settlement,  and  they  must  proceed  in  accord- 
ance with  it  in  selling  the  property  and  in  paying  the  debts  ; 
if  preferences  are  made,  the  trustees  must  pay  them  ;  ^  if  all 
are  to  be  paid  equally,  the  trustees  must  pay  in  that  manner.^ 
If  the  trust  is  to  pay  only  a  certain  class  of  debts,  or  a  certain 
number  of  debts  named,  the  trustees  must  confine  themselves 
to  their  power.^  The  principle  on  which  this  rests  is,  that  the 
assignor  was  the  owner  of  the  property,  and  he  could  give  such 
directions  as  to  the  disposal  of  it  as  he  pleased  ;  and,  so  long 
as  the  law  does  not  interfere  to  set  aside  the  assignment,  the 
assignee  must  follow  the  only  power  given  to  him,  to  wnt,  the 
deed  of  assignment.  In  England,  the  deed  generally  specifies 
the  mode  of  raising  the  money  for  the  purpose  of  the  trust,  by 
directing  a  sale  or  mortgage.  In  the  absence  of  such  direc- 
tion, the  intention  is  to  be  gathered  from  the  scope  of  the  whole 
deed,  whether  a  sale  or  mortgage  was  intended  ;  for  the  inten- 
tion is  to  govern.*  If  the  property  is  conveyed  in  trust  to  pay 
debts  generally,  the  trustees  can  make  a  good  title  to  the  pur- 
chaser, either  in  fee  or  in  mortgage,  and  the  purchaser  is  not 
bound  to  see  whether  there  are  debts,  or  whether  a  sale  is 
necessary,  or  to  see  to  the  application  of  the  purchase-money : 
the  creditors  must  look  to  the  trustees.^     But  if  the  trust  is  to 

*  Garrard  v.  Lauderdale,  3  Sim.  1 ;  Douglass  v.  Allen,  2  Dr.  &  War. 
213;  Pearce  v.  Slocombe,  3  Yo,  &  Col.  84. 

2  Ibid. ;  Anon.  3  Ch.  Ca.  54;  Child  v.  Stevens,  1  Vern.  102;  Woleston- 
croft  V.  Long,  1  Cb.  Ca.  32;  Hamilton  v.  Houghton,  2  Bligh,  169. 

^  Purefoy  v.  Purefoy,  1  Vern.  28  ;  Loddington  v.  Kime,  3  Lew.  433 ; 
Pratt  V.  Adams,  7  Paige,  615;  Stoddart  v.  Allen,  1  Rawle,  258;  Brainard 
V.  Dunning,  30  N.  Y.  211. 

*  Spalding  v.  Shalmer,  1  Vern.  301 ;  Ball  v.  Harris,  8  Sim.  485 ;  Sheldon 
V.  Dormer,  2  Vern.  310;  Shrewsbury  «.  Shrewsbury,  1  Ves.  Jr.  234;  Ivy  v. 
Gilbert,  2  P.  Wms.  13;  Mills  v.  Banks,  3  P.  Wms.  1 ;  Allen  v.  Backhouse, 
2  V.  &  B.  65;  Wilson  v.  Halliley,  1  R.  &  M.  590;  1  Sugd.  Pow.  116; 
Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  635. 

5  Johnson  v.  Kennett,  3  M.  &  K.  631 ;  Shaw  v.  Borrer,  1  Keen,  559 ; 
Eland  v.  Eland,  4  M.  &  Cr.  428;  Forbes  v.  Peacock,  11  Sim.  152;  Page  v. 
Adam,  4  Beav.  269;  Culpepper  v.  Aston,  2  Ch.  Ca.  115;  Anon.  Salk.  153; 
Dunch  V.  Kent,  1  Vern.  260 ;  Jenkins  v.  Hiles,  6  Ves.  654,  n. ;  Williamson 


§§  597, 598.]  HOW  executed.  147 

pay  one  particular  debt,  or  debts  named  in  a  schedule,  the  pur- 
chaser must  see  to  the  necessity  of  the  sale,  and  to  the  appli- 
cation of  the  purchase-money,^  unless  the  trustees  are  authorized 
to  give  receipts,  or  there  is  a  clause  in  the  trust-deed,  discharg- 
ing the  purchaser  from  such  obligations.^ 

§  598.  In  the  United  States,  a  deed  of  assignment  to  pay 
debts  necessarily  implies  a  power  to  sell ;  and  if  it  is  an  insol- 
vent estate,  a  power  to  mortgage  contained  in  the  deed  would 
render  it  fraudulent  and  void  ;  ^  therefore  all  deeds  of  assign- 
ment for  the  payment  of  debts  generally,  without  any  limita- 
tions or  directions,  confer  upon  the  trustees  a  right  to  sell.* 
But  if  there  are  special  directions  given  as  to  the  time,  man- 
ner, and  conditions  of  sale,  they  must  be  followed  as  given. ^ 
Thus,  a  conveyance  of  land  in  trust  to  pay  out  of  the  rents  and 
profits  the  grantor's  debts,  and  to  support  the  grantor,  his  wife 
and  children,  and  at  his  death  to  divide  it  among  his  children, 
gave  no  right  to  sell  for  payment  of  debts,  or  for  any  purpose.^ 
An  unsealed  writing,  purporting  to  convey  land  in  trust  to  pay 
one  debt,  does  not  confer  a  power  of  sale,  but  creates  a  simple 
lien  to  be  enforced  in  equity."  If  a  trustee  sells,  however, 
without  power,  and  all  parties  are  present,  acquiescing  in  the 

V.  Curtis,  3  Bro.  Ch.  96 ;  Doran  v.  Wiltshire,  3  Swans.  699 ;  Jones  v.  Price, 
11  Sim.  558;  Glyn  v.  Locke,  3  Dr.  &  War.  11 ;  2  Sugd.  V.  &  P.  32;  Doe 
V.  Hughes,  6  Exch.  223;  Lock  v.  Lonias,  21  L.  J.  Ch.  503;  Robinson  v. 
Lowater,  17  Beav.  601 ;  5  De  G.,  M.  &  G.  277. 

1  Doran  v.  Wiltshire,  3  Swans.  701;  Elliott  v.  Merryman,  Barn.  78; 
1  Keen.  573  ;  2  Atk.  41 ;  Spalding  v.  Shaliner,  1  Yern.  301 ;  Lloyd  v. 
Baldwin,  1  Ves.  73;  Balfour  t?.  Welland,  16  Ves.  151. 

«  Binks  V.  Rokeby,  2  Mad.  227  ;  Roper  v.  Hallifax,  2  Sugd.  Pow.  501, 
App.  3;  Jones  v.  Price,  11  Sim.  557  ;  Culpepper  v.  Aston,  2  Ch.  Ca.  115  ; 
Spalding  v.  Shalmer,  1  Vern.  301  ;  Braybroke  v.  Inskip,  1  Ves.  -117. 

'  Planck  V.  Schermerhorn,  3  Barb.  Ch.  G-li. 

*  Goodrich  v.  Proctor,  1  Gray,  567;  Purdie  v.  Whitney,  20  Pick.  25; 
Gould  V.  Lamb,  11  Met.  81;  Williams  i'.  Otey,  8  Humph.  563. 

*  Walker  v.  Brungard,  13  Sin.  &  M.  723. 
«  Mundy  v.  Vawter,  3  Grat.  518. 

">  Linton  v.  Boly,  12  Mo.  567. 


148  TRUSTS    FOR    CREDITORS.  [CHAP.   XX. 

sale,  they  are  estopped  in  equity  to  deny  the  title  of  the  pur- 
chaser.^ An  assignment  that  does  not  purport  to  convey  land 
in  trust  will  not  give  the  trustees  power  to  sell.^  If  the  trustee 
has  power  to  sell  land  to  pay  debts  generally,  it  is  impossible 
for  the  purchaser  to  know  what  the  debts  are,  or  whether  there 
is  a  necessity  for  the  sale.  ,  This  is  a  part  of  the  trust  and  duty 
confided  in  the  trustee,  and  a  purchaser  is  not  obliged  to  look 
to  the  application  of  the  purchase-money.^  The  English  rules 
upon  this  subject  are  not  favored  in  this  country,  and  they 
will  not  be  applied  if  any  circumstance  can  be  found  to  take 
the  case  out  of  their  operation.  But  if  the  trust  is  to  pay 
a  particular  debt,  or  certain  debts  named  in  a  schedule,  the 
purchaser  must  see  to  the  necessity  of  the  sale,  and  to  tlie 
application  of  the  purcliase-money,  unless  there  is  some  cir- 
cumstance or  power  to  take  the  case  out  of  the  rule.^  If 
there  is  collusion  or  fraud  between  the  trustee  and  purchaser, 
or  knowledge  in  the  purchaser  that  there  are  no  debts,  or  that 
the  sale  is  unnecessary  or  not  authorized,  it  is  all  void  as 
fraudulent.^  Although  there  is  fraud,  or  a  misapplication  of 
the  purchase-money  with  the  knowledge  of  the  purchaser,  he 
will  take  a  good  title  at  Imv ;  but  equity  will  convert  him  into 

*  Spencer  v.  Hawkins,  4  Ired.  Eq.  288. 

*  Baker  v.  Crookshank,  1  Whart.  Dig.  (6th  ed.)  Debt.  &  Cred.  pi.  370. 
^  Goodrich  v.  Proctor,  1  Gray,  670  ;  Andrews  v.  Sparhawk,  13  Pick.  393 

Gardner  v.  Gardner,  3  Mason,  178;  Williams  v.  Otey,  8  Humph.  568 
Garnett  v.  Macon,  2  Brock.  186 ;  6  Call,  308 ;  Grant  v.  Hook,  13  !Ser.  &  R 
259 ;  Bruch  v.  Lantz,  2  Rawie,  392 ;  Coombs  v.  Jordan,  3  Bland,  284 
Redheimer  v.  Pyron,  Spears,  Eq.  134;  Cadbury  v.  Duval,  10  Barr,  267 
Dalzell  V.  Crawford,  1  Pars.  Eq.  67 ;  Hannum  v.  Spear,  1  Yeates,  653 
2  Dall.  291 ;  Hauser  v.  Shore,  5  Jred.  Eq.  357;  Sims  v.  Lively,  14  B.  Mon 
433 ;  Lining  v.  Peyton,  2  Des.  378  ;  Wilson  v.  Davisson,  2  Rob.  Va.  385 
Nicholls  V.  Peak,  1  Beav.  69;  Rutleiige  v.  Smith,  1  Busb.  Efj.  283. 

«  Gardner  v.  Gardner,  3  Mason,  178;  DufFyv.  Calvert,  6  Gill,  487; 
Wormley  v.  Wormley,  8  Wheat.  422;  Cadbury  v.  Duval,  10  Barr,  267; 
Dalzell  V.  Crawford,  1  Pars.  Eq.  57 ;  Elliott  v.  Merryman,  1  Lead.  Ca.  Eq. 
45,  n. 

^  Potter  V.  Gardner,  12  Wheat.  498;  Garnett  r.  Macon,  2  Brock.  185'; 
Redheimer  v.  Pyron,  Spears,  Eq.  134. 


§§  598-600.]  PARTNERSHIP   ASSIGNMENTS.  149 

a  trustee,  and  make  him  accountable  to  the  creditors  or  cestuis 
que  trust.^ 

§  599.  As  a  general  rule,  the  assets  of  a  partnership  are 
holden  to  pay  partnership  debts,  and  the  separate  property  of 
each  individual  partner  is  holden,  first  to  pay  his  private  debts  ; 
so,  if  an  insolvent  partnership  make  an  assignment,  the  trustee 
must  apply  the  joint  property  to  the  joint  debts,  and  the  sepa- 
rate property  to  private  debts.^  So  a  partnership  assignment 
that  prefers  private  debts  is  void  ;  and  a  general  assignment  by 
an  individual  partner,  tliat  preferred  partnership  debts,  would 
be  void.^  But  where  it  is  legal  to  make  preferences,  an  assign- 
ment may  probably  prefer  either  class.'*  So  it  is  said  that  pro- 
visions in  a  partnership  assignment  that  do  not  go  beyond  the 
provisions  of  the  law  will  not  avoid  it,  though  releases  are 
stipulated  for.^  But  a  partnership  assignment,  that  provides 
for  a  release,  must  convey  all  the  property,  joint  and  separate, 
held  by  the  firm  ;  ^  and  the  deed  must  be  signed  and  sealed  by 
all  the  members  of  the  firm  ;  for  a  general  assignment  by  one 
partner  will  not  pass  the  partnership  assets ; '  nor  will  a  gen- 
eral assignment  by  a  single  member  of  a  limited  partnership 
pass  the  property  of  the  firm.^  By  statutes  in  nearly  all  the 
States,  all  preferences  by  limited  partnerships  are  forbidden.^ 

§  600.  If  by  the  terms  of  an  assignment  no  debts  are  to  be 
paid  until  they  have  been  examined  by  the  trustees,  a  creditor 

^  D'Oyley  v.  Loveland,  1  Strob.  L.  40.  A  sale  by  a  trustee  holding  the 
legal  title,  tliough  unauthorized  or  coUusive,  will  generally  pass  the  legal 
title ;  but  the  grantee  will  take  the  estate  charged  with  the  same  trusts  that 
the  original  trustee  was  charged  with. 

2  Pearce  v.  Slocombe,  3  Y.  »&  Col.  8t;  Merrill  v.  Neill,  8  How.  4U. 

8  Jackson  v.  Cornell,  1  Sand.  Ch.  348. 

*  Kirby  v.  Schoonmaker,  3  Barb.  Ch.  46. 

5  Andress  v.  Miller,  15  Penn.  St.  318. 

6  IL^nnessey  v.  Western  Bank,  6  Watts  &  S.  300. 
^  Ibid.  ;  Moddewell  v.  Keever,  8  Watts  &  S.  G3. 

8  Merritt  v.  Wilson,  29  Me.  58.         »  Mills  v.  Argall,  0  Paige,  577. 


150  TRUSTS  FOR  CREDITORS.         [CHAP.  XX. 

can  claim  no  benefit  under  the  deed,  until  lie  has  submitted  his 
claim  to  the  trustees.^  If  the  trustees  are  clothed  with  abso- 
lute power  to  allow  or  reject  all  claims,  the  court  cannot  inter- 
fere with  their  discretion  ;  ^  but  such  a  power  in  a  general 
assignment  by  an  insolvent  debtor  would  render  the  assign- 
ment void.  So  a  power  given  to  the  trustees  to  prefer  such 
debts  as  they  please  would  render  the  assignment  void.^  A 
general  power  to  pay  debts  will  not  justify  the  trustees  in  pay- 
ing fictitious  debts ;  *  nor  will  it  include  debts  founded  upon 
a  usurious  consideration  :  ^  but,  where  such  debts  are  specially 
named  and  directed  to  be  paid,  the  trustee  cannot  refuse  to  pay 
them,  deducting  the  usurious  excess.*"  If  a  debt  is  specially 
directed  to  be  paid,  and  afterwards  a  bill  is  sustained  to  set 
aside  such  debt  as  illegal  or  fraudulent,  the  trustees  cannot  pay 
it.^  So  a  general  direction  in  a  will  to  pay  debts  applies  only 
to  legal  debts,  due  upon  good  consideration,  and  enforceable 
against  the  testator's  estate.^  A  trust  to  pay  debts  named  in 
the  schedule  does  not  convert  such  debts  into  interest-bearing 
debts  if  they  did  not  bear  interest  before.     Even  if  the  direc- 

'  Wain  V.  Egmont,  3  M.  &  K.  445  ;  Drever  v.  Mawdesley,  16  Sim.  511 ; 
Nunn  V.  Wilsmore,  8  T.  R.  521 ;  Cosser  v.  Radford,  1  De  G.,  J.  &  Sra. 
585. 

'  Ibid. 

^  Wakeman  ik  Grover,  4  Paige,  24;  11  Wend.  187;  Hudson  v.  Maze, 
3  Scam.  579.  But  a  power  given  to  the  trustees  to  compromise  claims  due 
to  the  estate  does  not  avoid  it.     Bellows  v.  Partridge,  19  Barb.  178. 

*  Irwin  V.  Keen,  3  Whart.  347  ;  Webb  v.  Daggett,  2  Barb.  10 ;  Hard- 
oastle  V.  Fisher,  24  Mo.  70. 

*  Pratt  V.  Adams,  7  Paige,  617;  Beach  v.  Fulton  Bank,  3  Wend.  584. 
«  Green  v.  Morse,  4  Barb.  332 ;   Pratt  v.  Adams,  7  Paige,  641. 

'  Morse  v.  Crofoot,  4  Comst.  114. 

8  Rogers  v.  Rogers,  3  Wend.  503;  Chandler  v.  Hill,  2  Henn.  &  M.  124. 
Chancellor  Kent  in  an  opinion,  printed  6  Humph.  532,  advised  that  a 
preference  given  by  a  bank  to  pay  notes  illegally  issued  for  borrowed 
money  was  valid,  and  that  the  trustees  should  pay  them.  The  bank  should 
be  liable  for  money  had  and  received,  though  the  issuing  of  its  bills  was 
illegal.  It  hail  had  the  consideration  and  ought  to  pay,  though  it  had  done 
8uch  acts  as  to  forfeit  its  charter. 


§§  600,  601.]  ORDER   OF   PAYMENT.  151 

tion  is  to  pay  certain  debts  with  interest,  debts  that  do  not 
bear  interest  will  not  be  thus  converted  into  interest-bearing 
debts. 1,  But  debts  that  bear  interest,  by  the  contract  proving 
them,  must  be  paid  with  interest.^  If  interest  is  realized  by 
trustees  upon  funds  in  their  hands,  interest  must  be  paid.^  If 
the  trustees  permit  a  creditor  to  sign  the  deed  for  a  specified 
sum,  they  cannot  afterwards  contest  the  debt.*  But  if  there  is 
gross  fraud,  they  can  apply  to  the  court  to  set  it  aside.^  If  a 
creditor  repudiates  the  deed  and  sues  the  debtor,  the  trustee 
cannot  allow  him  to  retrace  his  steps  and  sign  the  deed  ;  and 
if  he  should  allow  it  to  be  done,  the  other  creditors  may  pro- 
cure it  to  be  set  aside.^ 

§  601.  It  has  been  held  in  some  cases  that  a  devise  for  the 
payment  of  debts  will  prevent  the  statute  of  limitations  from 
running  against  such  debts  as  are  not  barred  at  the  time  of  the 
testator's  death ;  but  it  will  not  revive  a  debt  already  barred,'^ 

•  Carr  v.  Burlington,  1  P.  Wms.  229;  Botliomly  v.  Fairfax,  1  P.  Wins. 
334;  Maxwell  v.  Wettenhall,  2  P.  Wms.  27;  Lloyd  v.  Williams,  2  Atk. 
Ill :  Harwell  v.  Parker,  2  Ves.  364;  Stewart  v.  Noble,  Vern.  &  Scriv.  o28  ; 
Creuze  v.  Hunter,  2  Ves.  Jr.  157 ;  4  Bro.  Ch.  316  ;  Tait  v.  Nortliwick.  4 
Ves.  618;  Shirley  y.  Ferrers,  1  Bro.  Ch.  41;  Hamilton  v.  Houghton,  2 
Bligh,  169. 

'  Hamilton  r.  Houghton,  2  Bligh,  187;  Tait  v.  Northwick,  4  Ves.  618; 
Bath  V.  Bradford,  2  Ves.  588;  Stewart  v.  Noble,  Vern.  &  Scriv.  536; 
Anon.  1  Salk.  154 ;  Burke  v.  Jones,  2  V.  &  B.  284 ;  Hughes  v.  Wynne, 
1  M.  &  K.  20;  Pearce  v.  Slocombe,  3  Y.  &  Col.  84;  Bryant  v.  Russell,  23 
Pick.  508;  Winslow  v.  Ancrum,  1  McCord,  Ch.  100.  But  it  has  been 
held,  that,  in  cases  of  preferred  debts,  the  preference  applied  only  to  the 
principal  debt,  and  that  the  interest  was  to  be  paid  pro  rata  with  the  unpre- 
ferred  debts.     Morris's  App.  1  Amer.  Law  Reg.  631. 

*  Pearce  v.  Slocombe,  3  Y.  &  Coll.  84. 

*  Lancaster  v.  Elce,  31  Beav.  335.  *  Ibid. 

^  Field  V.  Doiioughraore,  1  Dr.  &  War.  227,  reversing  2  Dru.  &  Walsh, 
630. 

■^  Fergus  v.  Gore,  1  Sch.  &  L.  107;  Hughes  v.  Wynne,  T.  &  R.  307; 
Crallan  v.  Oughton,  3  Beav.  1 ;  Burke  v.  Jones,  2  V.  &  B.  275 ;  Har- 
greaves  v.  Mitchell,  6  Mad.  326;  Harcourt  v.  Harcourt,  28  Beav.  303; 
Jones  V.  Scott,  1  R.  &  M.  225 ;  4  CI.  &  Fin.  382 ;  O'Connor  v.  Haslam,  5 
H.  L.  Ca.  177. 


152  TRUSTS   FOR   CREDITORS.  [CHAP.  XX. 

upon  the  principle  that,  as  soon  as  a  trust  is  created  for  the 
payment  of  a  debt,  the  statute  of  limitations  ceases  to  apply, 
as  it  does  not  run  against  trusts  generally.  Mr.  Hill  inclines 
to  the  opinion,  that  the  same  principle  would  apply  to  trusts 
under  deeds  for  the  payment  of  debts ;  ^  but  it  is  held  in  the 
United  States,  that  an  assignment  by  deed  for  the  benefit  of 
creditors,  or  an  assignment  in  insolvency,  does  not  prevent  the 
statute  from  running,  and  it  would  be  a  good  plea  in  bar  at  law, 
although  the  debts  were  specially  named  in  the  deeds  or  sched- 
ules.^ Bnt  the  creditors  may  enforce  their  claims  in  equity 
against  the  assets  in  the  hands  of  the  trustees.^ 

§  602.  In  settling  an  estate  under  an  assignment,  the  pre- 
ferred debts  will  first  be  paid.  The  remainder  is  then  distrib- 
uted to  the  unpreferred  debts  due  at  the  date  of  the  assignment, 
pro  rata,  if  tliere  is  a  deficiency  of  assets.^  If  there  is  a  residue, 
after  paying  all  the  creditors  who  come  in  under  the  deed,  it 
results  to  the  assignor.^  If  there  are  non-assenting  creditors 
who  have  no  rights  under  the  deed,  they  can  reach  the  surplus 
in  the  hands  of  the  trustee,  by  the  process  of  foreign  attach- 
ment, garnishment,  or  trustee  process.^ 

>  Hill  on  Trus.  341. 

*  Reed  v.  Johnson,  1  R.  I.  81 ;  Christy  v.  Flemington,  10  Barr,  129. 

'  Gary  v.  May,  16  Ohio,  G6.  And  this  must  be  upon  the  principle  of 
Mr.  Hill's  opinion  above  cited.  As  soon  as  a  trust  is  created  for  the  pay- 
ment of  a  debt,  and  the  relation  of  trustee  and  cestui  que  trust  is  established, 
the  statute  of  limitations  does  not  run  so  long  as  the  relation  exists,  but 
that  does  not  prevent  the  statute  from  running  at  law  against  the  original 
debtor ;  though  how  far  the  execution  of  the  deeds  or  schedules  naming  a 
debt  would  be  a  memorandum  in  writing  acknowledging  the  debt,  and  thus 
taking  it  out  of  the  statute,  is  not  very  well  settled. 

■•  Purefoy  v.  Purefoy,  1  Vern.  28. 

*  8  P.  Wms.  251,  n. ;  Poole  v.  Pass,  1  Beav.  600;  Dubose  v.  Dubose, 
7  Ala.  235  ;  Hall  v.  Denison,  17  Vt.  311 ;  Rahn  v.  McElrath,  6  Watts,  151 ; 
Stevens  v.  Earles,  25  Mich.  41.  So  if  there  is  a  residue  in  the  hands  of  an 
assignee  in  bankruptcy. 

^  Hastings  v.  Baldwin,  17  Mass.  558;  Hearn  v.  Crutcher,  4  Yerg.  461; 
Wright  V.  Henderson,  7  How.  (Miss.)  539  ;  Todd  v.  Bucknam,  2  Fairf.  41 ; 
Dubose  V.  Dubose,  7  Ala.  235 ;  Vernon  v.  Morton,  8  Dana,  247. 


§§  601-G02  5.]         POWER   OF   SALE   MORTGAGES.  153 

§  602  a.  Intimately  connected  with  general  assignments  in 
trust  for  creditors,  thus  far  treated  of  in  this  chapter,  are  trusts 
created  by  deeds  to  secure  the  payment  of  particular  debts,  — 
deeds  which  give  the  grantee  certain  powers  over  the  estate, 
but  do  not  exhaust  the  entire  interest  of  the  grantor  in  it. 
These  deeds  of  trust  and  mortgage-deeds  containing  powers  of 
sale  create  a  peculiar  kind  of  trust,  which  it  is  proper  to  discuss 
in  this  connection. 

§  602  h.  There  are  several  forms  of  mortgages :  (1)  A  mort- 
gage in  the  common  form  of  a  conveyance  of  the  estate,  with  a 
defeasance  inserted  which  provides,  that  if  a  certain  sum  of 
money  shall  be  paid  within  a  certain  time  the  deed  shall  be 
void.  (2.)  A  mortgage  in  the  form  of  a  deed  absolute  on  its 
face,  but  which  was  made  to  pay  or  secure  a  debt,  and  the 
grantor  takes  back  from  the  grantee  an  agreement  that  when 
the  debt  is  paid,  or  when  a  certain  sum  of  money  is  paid  to  the 
grantee,  he  will  sell  and  convey  the  premises  to  the  grantor. 
The  parties  sometimes  resort  to  ingenious  devices  to  disguise 
the  transaction  ;  but  if  the  substance  of  the  transaction  is  the 
security  of  an  antecedent  debt,  it  will  be  decreed  to  be  a  mort- 
gage, whatever  may  be  the  form  of  the  writings,  or  whatever 
may  be  their  recitals ;  and  even  parol  evidence  is  admissible  in 
some  States  under  some  circumstances  to  prove  that  a  deed 
absolute  on  its  face  is  in  fact  a  mere  security  for  a  debt  or  a 
mortgage.^  Both  these  forms  of  mortgages  can  be  foreclosed 
only  by  proceedings  in  equity  for  a  foreclosure,  or  by  an  entry 
and  taking  possession  according  to  the  law  or  the  statutes  in 
force  where  the  land  is  situated,  and  by  the  expiration  of  three 
years  or  other  limit  of  time  fixed  to  bar  the  mortgagor's  equity 
of  redemption.  (3.)  A  mortgage  may  be  in  the  form  of  a  deed 
of  trust  from  the  grantor  to  the  grantee,  providing  that  if  the 
grantor  shall  not  pay  a  certain  sum  of  money  at  a  certain  time, 

^  Ante,  §226;  Campbell  v.  Dearborn,  109  Mass.  130,  where  the  cases 
are  reviewed. 


154  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

the  grantee  may  sell  the  estate  in  a  certain  manner,  or  do  what- 
ever other  thing  the  deed  of  trust  points  out  to  be  done.  (4.)  A 
fourth  form  of  mortgage  is  a  deed  of  conveyance  with  a  defea- 
sance inserted  as  in  ordinary  mortgages,  and  with  a  power  of 
sale  superadded  to  enable  the  grantee  or  mortgagee  to  sell  the 
property  at  any  time  after  default  of  payment  according  to  the 
terms  of  the  power  contained  in  the  mortgage.  It  is  quite  ap- 
parent that  many  questions  peculiar  to  the  law  of  trusts  must 
arise  under  deeds  and  mortgages,  which  contain  such  powers 
and  provisions. 

§  602  c.  In  the  civil  law  a  power  of  sale  was  implied  in  every 
mortgage  upon  default  of  payment  according  to  the  terms  of 
the  pledge,  and  an  express  agreement  did  not  deprive  the  mort- 
gagee of  this  right.i  By  the  common  law,  at  first,  mortgages 
became  absolute  deeds,  if  the  terms  of  the  defeasance  were  not 
strictly  performed  at  the  day,  l)ut  courts  of  equity  succeeded  in 
establishing  an  equity  of  redemption  in  the  mortgagor  in  the 
land,  which  remained  an  equity  in  him  until  the  mortgage  was 
duly  foreclosed  by  process  of  law.  Courts  were  astute  in  pro- 
tecting this  equity  of  redemption,  and  leaned  strongly  against 
all  agreements  between  the  mortgagor  and  mortgagee  which 
abridged  it.  "  Once  a  mortgage  always  a  mortgage  "  became 
ia  maxim.  Therefore,  when  provisions  began  to  be  inserted  in 
deeds  which  enabled  the  mortgagee  to  destroy  at  once  this 
equity  of  redemption,  courts  looked  upon  them  with  suspicion, 
if  not  with  aversion,  as  devices  intended  to  oppress  and  injure 
mortgagors,  who  are,  from  the  nature  of  the  case,  more  or  less 
in  the  power  of  mortgagees.  Perhaps,  where  the  rights  of  the 
mortgagor  were  not  properly  guarded,  the  fears  of  Lord  Eldon 
and  others,  who  opposed  the  introduction  of  these  forms  and 
trusts,  were  not  unreasonable  or  groundless.  But,  notwithstand-' 
ing  all  opposition,  the  use  of  them  has  steadily  increased,  until 
they  are  common, in  England  and  iii  nearly  all  the  States.    They 

1  1  Domat,  360. 


§§  602  6-602  cL]       POWER  of  sale  mortgages.  155 

are  regulated  by  statutes,  and  are  under  the  jurisdiction  of  courts 
of  equity,  which  can  interfere,  by  injunctions,  prohibitions,  orders, 
and  decrees,  to  prevent  oppression  and  remedy  abuses.  A  large 
proportion  of  the  mortgage-deeds  of  real  estate  now  contain 
powers  of  sale  in  case  of  default,  and  the  laws  regulate  and 
protect  theni.^ 

§  G02  d.  Mortgages  containing  powers  of  sale  and  deeds  of 
trust  to  secure  a  debt  due  to  a  creditor,  are  substantially  the 
same  thing  in  law  and  equity.  At  law,  both  kinds  of  deeds 
purport  to  convey  the  legal  title  to  the  grantee  or  creditor,  or 
trustee  ;  but  in  equity  the  land,  the  title,  and  the  deeds  stand 
for  security  of  the  debt.  The  debt  is  the  principal  thing,  and 
the  conveyance  of  the  land  is  collateral  to  the  debt.  The  mort- 
gagor in  both  cases  has  an  estate  in  the  land  called  an  equity 
of  redemption  ;  if  he  fails  to  pay  the  debt,  his  equity  of  re- 
demption is  barred  upon  due  proceedings  had  ;  but  if  the  debt 
is  paid  at  any  time  before  his  equity  is  defeated  by  the  steps 
appointed  to  be  taken,  it  becomes  absolute,  and  he  is  entitled 
to  a  reconveyance  or  a  discharge  of  the  mortgage,  as  the  case 
may  be.  In  some  circumstances  a  discharge  of  the  mortgage 
upon  payment  or  a  reconveyance  is  not  material,  as  by  the 
terms  of  the  mortgagee  and  by  the  law  it  l)ecomes  null  and 
void.  A  mortgage  is  a  pledge  or  security  for  a  debt,  whatever 
may  be  the  form  which  the  transaction  takes,  whether  a  simple 
mortgage-deed  in  foim,  or  a  mortgage  with  a  power  of  sale,  or 
a  deed  in  trust,  or  a  deed  absolute  on  its  face,  accompanied  by 
an  agreement  in  writing  to  rcconvcy,  or  to  sell,  or  to  do  any 

1  Croft  V.  Powell,  1  Comyn,  608  (1729);  2  Cruise,  Dig.  90;  Clay  v. 
Sharpe,  Siigd.  V.  &  P.  App.  21;  Cordi'r  v.  Morgan,  18  Ves.  344;  2  Call, 
4Go,  o()8 ;  Curling  v.  Sliuttlewoi  th,  G  Bing.  121;  Forster  v.  Iloggart,  15 
Q.  B.  155 ;  Clay  v.  Willis,  1  B.  &  C.  364 ;  4  Kent's  Com.  146 ;  2  Story,  Eq. 
Jur.  §  1027  ;  Longvvith  v.  Butler,  3  Gilm.  32 ;  Slee  v.  Manhattan  Co.  1  Paige, 
57;  Lawrence  v.  Farmer's  Loan  and  Trust  Co.  3  Kern.  200;  Bronson  v. 
Kinsie,  1  How.  321 ;  Fogarty  i'.  Sawyer,  17  Cal.  589 ;  Bradley  i".  Phil. 
R.R.  Co.  36  Peun.  St.  141 ;  Hyde  v.  Warren,  46  Miss.  13. 


/ 


f 


156  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

other  thing  upon  the  payment  of  a  certain  sum  of  money ;  courts 
of  equity  look  upon  it  as  a  mortgage,  and  deal  with  it  as  such. 
The  test  in  all  these  forms  is  this,  Does  the  transaction  resolve 
itself  into  a  security  for  the  payment  of  a  sum  of  money  or  a  debt, 
and  until  a  default  in  the  payment  of  a  sum  of  money  or  a  debt, 
has  tlie  grantor  a  right  to  pay  the  money  and  keep  or  receive  back 
the  title  to  his  property  ?  ^  And  it  is  immaterial  that  the  convey- 
ance is  made  to  a  third  person,  and  not  to  the  creditor  himself. 
In  such  case  the  grantee  is  a  trustee  by  an  express  or  a  result- 
ing trust,  as  the  case  may  be,  to  the  amount  of  the  debt,  and  the 
grantor  has  an  equity  in  all  beyond,  or  if  the  deed  is  absolute 
on  its  face,  or  a  deed  of  trust,  the  grantee  is  a  trustee  for  the 
grantor  for  what  remains  over  and  above  the  debt.^  Thus  a 
bank  authorized  to  hold  lands  mortgaged  for  security  may  take 
deeds  of  trust  to  themselves  or  to  trustees  for  their  use  ;  ^  and  a 
railroad  company  authorized  to  mortgage  its  property  was  held 
to  have  authority  to  make  a  deed  of  trust ;  *  and  where  there  are 
special  statutes  in  relation  to  the  recording  of  mortgages,  it  has 
been  held  that  tliese  statutes  embrace  deeds  of  trust  made  as 
security  for  debts  ;  ^  and  so  the  statutes  relating  to  the  satisfac- 
tion and  discharge  of  mortgages  embrace  deeds  of  trust,^  and  it 
has  been  held  that  an  agent,  having  a  general  power  to  execute 
a  mortgage  in  the  name  of  his  principal,  may  execute  a  mort- 

1  4  Kent's  Com.  136 ;  146,  2  Story,  Eq.  Jur.  §  1018 ;  Cotterell  v.  Long, 
20  Ohio,  464,  472;  Wilcox  v.  Morris,  1  Murph.  N.  C.  116;  Eaton  v.  Whit- 
ing,  3  Pick.  484;  Bloom  v.  Rensselear,  15  111.  505;  WoodrufiFv.  Robb,  19 
Ohio,  217 ;  Sargent  r.  Howe,"  21  111.  149 ;  Fanning  v.  Kerr,  7  lo.  450 ; 
Crocker  v.  Robertson,  8  lo.  404;  Flagg  v.  Mann,  2  Sumn.  533;  Jackson 
V.  Blount,  2  Dev.  Eq.  555 ;  Rogan  v.  Walker,  1  Wis.  527  ;  Johnson  v.  Clark, 
5  Ark.  321. 

«  Woodruff  i\  Robb,  19  Ohio,  217;  Sargent  v.  Howe,  21  111.  450. 

^  Bennett  v.  Union  Bank,  5  Humph,  612. 

*  Wright  V.  Bundy,  11  Met.  398,  404. 

*  Magee  v.  Carpenter,  4  Ala.  469 ;  Fogarty  ».  Sawyer,  23  Cal.  570. 

«  McGregor  v.  Hall,  3  Stew.  &  For.  397 ;  Woodruff  v.  Robb,  19  Ohio, 
212 ;  Wolfe  v.  McDowell,  13  Sm.  &  M.  103 ;  Smith  v.  Doe,  26  Miss.  291 ; 
Crosby  v.  Huston,  1  Tex.  239. 


§§  602  d,  602  e.]     deeds  of  trust  and  mortgage.  157 

gage  containing  a  power  of  sale.^  There  are  incidental  differ- 
ences between  mortgages  with  or  without  powers  of  sale  and 
deeds  of  trust,  as  there  are  differences  in  mortgage-deeds  them- 
selves in  the  special  stipulations  that  may  be  inserted.  Par- 
ties can  make  their  own  contracts ;  and  the  contracts  must  be 
performed  according  to  the  special  stipulations ;  -  but  both 
mortgages  and  deeds  of  trust  are  alike  in  their  great  character- 
istics. They  botli  stand  as  security  for  the  payment  of  money 
or  tlie  performance  of  some  other  obligation  ;  under  both  the 
grantor  has  an  equitable  right  of  redemption,  or  to  have  the 
property  again  upon  the  performance  of  his  obligation,  and  this 
equity  of  redemption  can  only  be  barred  by  regular  proceedings 
according  to  the  law,  or  according  to  the  provisions  and  condi- 
tions contained  in  the  respective  deeds. 

§  602  e.  Mortgages  with  power  of  sale  and  deeds  of  trust 
are  executed  like  all  other  instruments  of  trust.  They  need 
not  be  signed  by  the  grantee,  trustee,  or  cestuis  que  trust. 
Acceptance  of  the  trusts  created  under  them  may  be  proved 
by  parol,  whether  such  acceptance  was  manifested  by  words  or 
acts.-^  The  assent  of  the  creditors  to  be  secured  by  such  deeds 
will  be  presumed,  if  they  are  beneficial  to  them;  but  if  the 
effect  of  the  deeds  is  to  hinder  and  delay  the  creditors,  their 
assent  must  be  shown,*  and  such  deeds  cannot  be  revoked  after 
the  assent  of  the  parties  to  be  benefited.^ 

1  Wilson  V.  Troup,  7  John.  Cli.  25;  2  Cowen,  195;  4  Kent.  Com.  U7. 

"  Elliott  V.  Wood,  45  N.  Y.  71. 

=•  Ante,  §§  589,  693,  594 ;  Scull  v.  Reeves,  2  Green,  Ch.  84  ;  Flint  v.  Clinto 
Co.  12  N.  H.  432;  Spencer  v.  Ford,  1  Rob.  (Va.)  648;  Lifller  v.  Arm- 
strong, 4  lo.  482;  Pope  v.  Brandon,  2  Stew.  (Ala.)  401  ;  Skepworth  r.  Cun- 
ningham, 8  Leigh,  271  ;  Hipp  v.  Hutohell,  4  Tex.  20;  Field  v.  Arrowffmith, 
3  Humph.  442;  Robertson  v.  Sublett,  6  Humph,  313;  Brevard  v.  Neely, 
2  Sneed,  164;    Mayer  v.  PuUam,  2  Head,  347. 

*  Ante,%  693;  Shearer  v.  Loften,  26  Ala.  703;  Wiswall  v.  Ross,  4  Por- 
ter (Ala.)  328 ;   Mauldin  v.  Annstead,  14  Ala.  702. 

°  A7ite,  §§  593,  694;   Gate  v.  Debrett,  10  Yerg.  146. 


< 


158  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

§  602  /.  Such  deeds  may  be  executed  for  the  payment  of 
debts,  or  for  tlie  performance  of  any  kind  of  a  legal  obligation, 
whether  of  the  grantor  or  of  a  third  person.  So  they  may  be 
given  to  indemnify  one  against  contingent  obligations.  Thus 
a  trust-deed  to  indemnify  sureties  upon  a  bond  or  note  or 
endorser  of  notes  will  be  upheld  ;  ^  and  so  mortgages  with 
power  of  sale,  made  by  a  married  woman  to  pay  the  debt  or 
note  of  her  husband,  have  been  upheld  in  law  and  equity .^ 

§  602  g.  The  powers  of  trustees  under  deeds  of  trust,  and  of 
mortgagees  under  mortgages  with  power  of  sale,  depend  en- 
tirely upon  the  terms  of  the  deeds.  Such  powers  are  created 
by,  and  exist  in  the  deeds,  and  of  course  they  exist  in  the 
terms  in  which  they  are  created,  and  in  no  others.  They  are 
to  be  exercised  by  the  trustees  in  pais.  They  are  wholly  mat- 
ters of  convention  and  contract  between  the  parties,  and  not 
of  law  or  jurisdiction.  They  can  be  exercised  because  they  are 
conferred  by  one  party  upon  another,  and  not  because  the  law 
or  the  courts  have  conferred  or  authorized  them.  Statutes  in 
some  of  tlie  States  have  regulated  their  execution,  but  such 
statutes  do  not  create  the  powers  themselves.^  Therefore  it  is 
that  purchasers  of  land  under  powers  take  under  the  deed  in 
which  the  powers  are  created  ;  it  is  as  if  the  purchaser's  name 
was  inserted  in  that  deed.  It  follows  that  the  purchaser  must 
look  carefully  to  the  intention  and  purpose  of  the  power  as  well 
as  to  its  extent,  for  if  it  is  executed  contrary  to  its  intent  or 
purpose,  or  outside  of  its  true  scope,  or  not  in  the  manner 
in  which  it  is  provided  that  it  should  be  executed,  the  pur- 

'  Griffin  V.  Doe,  12  Ala.  783 ;  Hawkins  v.  May,  12  Ala.  673 ;  Thurston 
r.  Prentiss,  1  Mich.  194,  Walk.  Ch.  529;  Graham  v.  King,  15  Ala.  563, 
5  Port.  191 ;  Boden  v.  Jaco,  17  Ala.  344.  But  see  Jackson  v.  Hampton, 
8  Ind.  457. 

''  Young  V.  Graff,  28  111.  20 ;  Bartlett  v.  Bartlett,  4  Allen,  440. 

'  Doolittle  V.  Lewis,  7  John.  Ch.  45,  Beattie  v.  Butler,  21  Mo.  313; 
Turner  v.  Johnson,  7  Ohio,  216,  220;  Elliott  v.  Wood,  45  N.  Y.  71 ;  Hyde 
V.  Warren,  46  Miss.  13;  Richmond  v.  Hughes,  9  R.  I.  228. 


§§  602/,  602^.]         TRUSTS    UNDER   MORTGAGES.  159 

chaser  will  take  no  title.  The  purchaser  is  bound  to  know 
the  full  particulars  and  purpose  of  the  power  under  which  he 
purchases ;  and  if  he  makes  any  mistake  in  the  construction  of 
the  power,  or  if  he  does  not  fully  inform  himself  and  acts  in 
ignorance,  he  will  take  no  title  if  the  power  is  not  proiicrly  ex- 
ecuted.^ The  power  to  sell  need  not  be  contained  in  the  same 
instrument  with  the  conveyance  of  the  title.  Thus  a  simple 
mortgage  may  be  made  without  a  power  of  sale  to  secure  a 
debt,  and  at  the  same  time  the  mortgagor  may  give  a  power  to 
the  mortgagee  or  to  a  third  person  to  sell  the  land  upon  default 
of  payment,  and  to  pay  the  del)t  from  the  proceeds,  and  to  ac- 
count for  the  balance,  if  any  ;  and  such  power  will  be  valid,  and 
the  execution  of  it  will  bar  the  equity  of  redemi)tion  of  the 
mortgagor  ;  ^  and  so  the  power  may  be  changed  by  consent  of 
parties,  by  a  writing  under  seal  of  equal  solemnity  with  the 
original  instrument.^  The  power  of  sale  should  be  expressed 
in  plain  terms,  but  no  particular  form  is  necessary,  and  a  power 
of  sale  may  arise  by  implication,  as  where  a  duty  is  imposed 
upon  a  trustee  which  he  cannot  perform  without  selling ;  *  and 
the  right  to  sell  implies  the  riglit  to  convey.^  So  the  mort- 
gagee may  bind  himself  to  execute  any  other  power  or  perform 
some  other  act,  as  to  convey  the  land  to  some  other  person  or 
to  the  mortgagor's  wife  upon  the  payment  of  the  mortgage 
debt.*^  The  power  to  sell  may  be  made  to  depend  upon  almost 
any  circumstance,  as  upon  default  in  payment  of  the  taxes  by 

1  Wallis  V.  Thornton,  2  Brock.  422;  Demall  v.  Morgan,  5  Call,  417; 
Wilson  V.  Troup,  7  John.  Ch.  25;  Omisby.r.  Tarascon,  3  Litt.  410;  Wil- 
liams V.  Otey,  8  Humph.  518  ;  Walker  v.  Brungbad,  13  Sm.  &  M.  723.  See 
ante,  §§  511  a,  511  b,  511  c,  &  704-787. 

"  Brisbane  v.  Stoughton,  17  Ohio,  482. 

*  Balilridge  v.  Walton,  1  Mo.  520. 

*  Post,  §  76G;  Purdie  v.  Whitney,  20  Pick.  25;  Williams  v.  Otey,  8 
Humph.  563 ;  Munday  v.  Vattier,  3  Grat.  518  ;  Linton  v.  Boly,  12  Mo.  567  ; 
Goodrich  v.  Proctor,  1  Gray,  567.  See  Wing  v.  Cooper,  37  Vt.  169;  Hy- 
man  v.  Devereux,  G3  N.  C.  624. 

^  Williams  v.  Otey,  8  Humph.  563;  Fogarty  v.  Sawyer,  17  Cal.  689. 

*  Blount  V.  Carroway,  67^N.  C.  396. 


160  TRUSTS  FOR  CREDITORS.         [CHAP.  XX. 

the  mortgagor.^  A  condition  may  be  annexed  to  the  power 
that  the  mortgagor  shall  concur  in  the  sale,  and  join  in  the 
deed.2 

§  602  h.  It  is  a  universal  rule  that  a  power  coupled  with  an 
interest  is  irrevocable  ;  and  as  a  power  of  sale  inserted  in  a 
mortgage  or  contained  in  a  deed  of  trust  to  a  creditor  to  secure 
a  debt  or  to  a  third  person  for  his  benefit,  is  a  power  coupled 
with  an  interest,  it  cannot  be  revoked  by  any  act  of  the  grantor 
or  donor  of  the  power.  Not  even  the  death  or  insanity  of  the 
grantor  or  donor  will  annul  the  power  or  suspend  its  exercise. 
The  debt  remains,  the  right  or  lien  on  the  property  remains, 
and  the  power  is  coupled  with  them.  In  other  words,  the 
power  is  annexed  to  the  property,  and  is  an  irrevocable  part  of 
the  security,  and  goes  with  it.^  The  mortgagor  cannot  disseise 
the  mortgagee  by  an  exclusive  possession  in  such  manner  as  to 
defeat  the  power  of  sale.^  A  mere  power  of  attorney,  however, 
from  a  debtor  to  a  creditor,  authorizing  him  to  sell  property, 
and,  after  deducting  the  amount  due  to  himself,  to  account  for 
the  balance,  is  a  naked  power,  revocable  at  the  will  of  the  donor. 
Such  a  power  is  not  connected  with  the  estate,  and  is  no  part 
either  of  the  estate  or  the  debt  due.^ 

1  Pope  V.  Durant,  26  lo.  233. 

^  Kissam  v.  Dierkes,  49  N.  Y.  602. 

»  Ante,  §  593  ;  Wiswall  v.  Ross,  4  Port.  (Ala.)  328;  Bergen  v.  Bennett, 

1  Caines,  Cas.  in  Er.  1;  Wilson  v.  Troup,  7  John.  Ch.  25;  Wilbur  w. 
Spofford,  4  Sneed,  698; -Hyde  v.  Warren,  46  Miss.  13;  Berry  v.  Skinner, 
30  Md.  567  ;  Collins  v.  Hopkins,  7  Clarke,  lo.  463 ;  Bancroft  v.  Ashhurst, 

2  Grant,  Cas.  513;  Hannah  v.  Carrington,  18  Ark.  104;  Beattie  v.  Butler, 
21  Mo.  313;  Walker  v.  Crowder,  2  Ired.  Eq.  478  ;  Stimpson  v.  Fries,  2 
Jones,  Eq.  156 ;  Doe  v.  Duval,  1  Ala.  745.  In  Robertson  t'.  Paul,  16  Tex. 
472,  &  26  Tex.  205,  the  court  admitted  these  general  principles,  but  thought 
that  powers  of  sale  to  be  executed  after  the  death  of  a  donor  were  incon- 
sistent with  the  statutes  authorizing  the  settlement  of  the  estates  of  deceased 
persons.  Buchanan  v.  Monroe,  22  Tex.  587;  Brewer  v.  Winchester,  2 
Allen,  389 ;  and  see  Encking  v.  Simmons,  28  Wis.  272,  where  a  sale  was  set 
aside  for  the  reason  that  the  mortgagor  was  insane  and  the  price  very  low. 

*  Sheridan  v.  Welch,  8  Allen,  166. 

*  Mansfield  v.  Mansfield,  6  Conn.  559. 


§§  602^-602y.]       TITLE    OF    MORTGAGOR  AND   MORTGAGEE.      161 

§  602  i.  The  mortgagee  in  a  deed  of  mortgage  and  the  trus- 
tee in  a  deed  of  trust  take  the  legal  title  and  estate  for  the  pur- 
poses of  their  security.  In  all  cases  the  legal  title  is  in  the 
trustee  under  the  trust  deed,  if  the  deed  purports  to  convey 
the  estate.^  Such  a  title,  however,  is  defeasible  upon  the  per- 
formance by  the  grantor  of  the  obligations  undertaken  by  him. 
Performance  of  the  conditions  of  the  deed  on  the  part  of  the 
grantor,  or  tender  of  performance  before  the  sale,  will  defeat 
the  power  of  sale  in  a  mortgage  or  deed  of  trust.  Such  per- 
formance or  tender  extinguishes  the  power ;  and  a  sale  after- 
wards under  the  power,  even  to  an  innocent  purchaser,  will 
be  void.2 

§  602  y.  In  law,  a  mortgage  is  considered,  as  between  the 
mortgagor  and  mortgagee,  and  so  far  as  it  is  necessary  to  give 
full  effect  to  the  mortgage  as  a  security  for  the  performance  of 
the  condition,  as  a  conveyance  in  fee.  But  for  all  other  pur- 
poses it  is  considered,  especially  until  entry  for  conditioii 
broken,  as  a  mere  charge  or  incumbrance,  which  does  not  divest 
the  estate  of  the  mortgagor.  He  is  deemed  seised  so  far  that 
he  can  convey  it  subject  to  the  mortgage  ;  he  may  make  a  second 
mortgage  ;  it  may  be  attached  for  his  debts  ;  he  is  considered  as 
having  all  the  rights  and  powers  of  an  owner,  except  so  far  as  it 
is  necessary  to  hold  otherwise  in  order  to  give  effect  to  the  mort- 
gage. The  interest  of  a  mortgagor  is  therefore  regarded  as  an 
estate  ;  though,  in  legal  strictness  and  as  against  the  mortgagee, 
it  is  an  equity  of  redemption.  It  may  be  levied  upon  and  seisin 
delivered  by  the  officer ;  in  which  case  the  creditor  will  hold  in 

•  White  V.  Whitney,  3  Met.  81 ;  Greenleaf  r.  Queen,  1  Pet.  138;  IMorris 
V.  Way,  1(3  Ohio,  4G9  ;  Anderson  v.  Ilolloman,  1  Jones,  L.  1G9;  Thorn- 
hill  V.  Gilmer,  4  Sm.  &  M.  153;  Brown  v.  Bartie,  10  Sm.  &  M.  2G8,  275; 
Sargent  v.  Howe,  21  111.  148;  Hannah  v.  Carrington,  18  Ark.  85;  Taylor 
V.  King,  ()  Munf.  358;  Newman  v.  Jackson,  12  Wheat.  570. 

=>  Cook  V.  Dillon,  9  lo.  407  ;  King  v.  ]Merfhants'  Ex.  Co.  1  Seld.  547  ; 
Cameron  v.  Irwin,  5  Hill,  272;  Deyo  v.  Van  Valkenburg,  5  Hill,  24(3; 
Wood  V.  Colvin,  2  Hill,  5(36. 

VOL.  n.  11 


162  TRUSTS   FOR   CREDITORS.  [CHAP.  XX, 

fee  subject  to  the  mortgage.     The  same  principles  apply  to  the 
rights  and  title  of  the  grantor  in  deeds  of  trust.^ 

§  602  Tc.  The  legal  estate  being  thus  in  the  mortgagee  or 
trustee  for  the  purpose  of  the  security,  the  power  of  sale  is  a 
power  appendant  to  the  estate  itself,  and  takes  effect  out  of  it.^ 
If  the  mortgagee  or  trustee  ceases  in  any  way  to  have  an  inter- 
est in  the  estate,  he  ceases  to  have  any  power  over  it.  If,  there- 
fore, they  totally  alienate  the  estate  to  which  the  power  is 
appendant,  they  extinguish  the  power.^  If  a  trustee  conveys 
the  property,  even  in  breach  of  the  trust,  he  extinguishes  his 
power,  and  a  subsequent  sale  will  be  void.*  But  a  court  of 
equity  can  give  relief  from  fraud  and  breaches  of  trust.  If, 
however,  a  trustee  has  sold  the  property  in  breach  of  the  trust, 
and  he  afterwards  obtains  the  legal  title,  the  old  trust  will  re- 
attach to  it  in  his  hands,  and  he  may  again  have  a  power  of 
sale  as  a  part  of  the  terms  of  the  trust.° 

§  602  I.  The  trustee,  or  mortgagee  with  a  power  of  sale, 
holds  the  lands  in  trust  for  the  purposes  for  which  the  deeds 
are  made,  which  purposes  are  generally  specified  in  the  deeds 
themselves.  The  trusts  are,  generally,  (1.)  to  sell  the  lands 
upon  default  of  payment  in  the  manner  pointed  out  in  the 
deed ;  (2.)  to  apply  so  much  of  the  proceeds  of  the  sale  as  is 

1  AV^hite  V.  Whitney,  3  Met.  81 ;  Harrison  v.  Battle,  1  Dev.  Eq.  541  ; 
Poole  V.  Glover,  2  Ired.  L.  129  ;  Anderson  v.  Jones,  1  Jones,  Law,  169. 
The  text  states  the  prevailing  rule  in  the  majority  of  States.  McGregor  v. 
Hall,  3  Stew.  &  For.  397;  4  Kent,  160,  161,  195,  n.  If  the  trustee  make 
a  sale,  and  there  is  a  surplus,  the  wife  of  the  grantor  is  entitled  to  dower  in 
it  as  in  an  equity  of  redemption.  In  a  few  States,  —  Mississippi,  Ohio, 
Arkansas,  and  perhaps  others,  —  this  equity  of  the  grantor  in  a  detd  of  trust 
cannot  be  reached  at  law.  A  creditor  is  compelled  to  have  resort  to  a  pro- 
ceeding in  equity. 

2  Post.  §  765 ;  Alger  v.  Fay,  12  Pick.  322. 
'  1  Sugd.  Pow.  54. 

■*  Huckabee  v.  Billingsby,  16  Ala.  414  ;  Hogan  v.  Lepretre,  1  Port.  392  ; 
Doe  V.  Robinson,  24  Miss.  688. 

6  Salisbury  v.  Bigelow,  20  Pick.  174. 


§§  602J-602  WJ.]       RULES   THAT   GOVERN   THESE   TRUSTS.  163 

necessary  to  the  payment  of  the  debts  secured  by  tlie  deeds ; 
and  (3.)  to  account  for  and  pay  over  the  balance,  after  paying 
the  expenses  of  the  tcust  and  the  sale  to  the  grantor  or  mort- 
gagor, his  legal  representatives  or  assigns.  The  interest  of  the 
mortgagee  with  a  power  of  sale  is  the  same  as  the  interest  of 
tlie  other  mortgagees  under  the  old  foim  of  mortgage  ;  and  the 
cestuis  que  trust  under  deeds  of  trust  have  a  mere  equitable 
interest,  which  can  only  be  enforced  in  equity.  Neither  the 
interests  of  mortgagees  nor  of  cestuis  que  trust  can  be  reached 
at  law  by  the  levy  of  execution ;  but  proceedings  must  be  in 
equity  for  such  purposes.^ 

§  602  771.  The  trustee,  in  a  deed  of  trust  for  security,  is  sub- 
ject to  the  same  rules  that  govern  all  trustees.  He  may  refuse 
the  office,  as  no  one  is  compelled  to  accept  a  trust ;  ^  but  if  he 
once  accepts  the  trust,  or  does  any  acts,  he  cannot  abandon  it 
without  the  consent  of  all  parties  in  interest  or  the  decree  of  a 
court.^  In  all  cases  of  a  trust  or  power  coupled  with  an  inter- 
est, the  power  survives  so  long  as  the  interest  survives,  and  it 
goes  with  the  interest  and  the  estate.*  If  a  part  of  the  trustees 
named  in  a  deed  refuse  to  accept,  or  die  or  resign,  those  who 
accept  the  trust  and  survive  can  execute  the  trust,  even  to  the 
last  one.'^  Upon  the  death  of  the  last  trustee,  the  estate 
descends  to  his  heirs,^  but  the  court  can  appoint  new  trustees; 

'  4  Kent,  Com.  159-160  ;  McTntire  v.  Agricultural  Bank,  1  Freem.  Ch. 
105  ;  Harrison  v.  Battle,  1  Dev.  Eq.  541  ;  Jenks  v.  Alexander,  11  Paii;;e, 
619,  624;  Leonard  v.  Ford,  8  Ired.  L.  418;  McGregor  v.  Hale,  3  Stew. 
&  For.  408, 

*  Ante,  §  259. 

'  Ante,  §  268;  post,  §  94;  Drane  v.  Gunter,  19  Ala.  731 ;  3  Yerg.  307  ; 
21  111.  148. 

*  Ante,  §§  502,  503,  505. 

"  AVilliams  v.  Otey,  8  Humph.  562;  Taylor  v.  Benham,  5  How.  233; 
Scull  V.  Reeves,  2  Green,  Ch.  84;  Hannah  v.  Carrington,  18  Ark.  104; 
Parsons  v.  Boyd,  20  Ala.  118 ;  Franklin  v.  Osgood,  14  Johns.  527  ;  Robert- 
son r.  Gaines,  2  Humph.  367;  In  matter  ol'  Stevenson,  3  Paige,  420; 
Hawkins  v.  May,  12  Ala.  672 ;  Peters  v.  Beverly,  10  Peters,  532. 

*  Ante,  §§  273,  341;  Mauldin  i-.  Armstead,  14  Ala.  708. 


164  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

and  in  many  States  there  are  statutes  that  vest  the  estate  and 
all  powers  that  are  appendant  to  the  estate  in  the  new  trustee  ;  ^ 
if  there  are  no  such  statutes,  courts  can-  order  tlie  heirs  to  con- 
vey the  estate  to  the  new  trustees.^  The  same  rules  apply  to 
the  appointment  of  new  trustees  under  deeds  of  trust  that  apply 
to  the  removal  and  appointment  of  trustees  in  any  other  case.^ 
So  the  same  rules  apply  in  relation  to  the  concurrence  of  all 
the  trustees  in  the  execution  of  the  trust,*  and  to  the  liabilities 
of  the  trustees  for  the  acts  of  their  cotrustees.^  Nor  can  they 
delegate  their  power.^ 

§  602  w.  Powers  of  sale  contained  in  a  mortgage  deed  stand 
upon  somewhat  different  principles.  A  mortgage  is  personal 
assets,  and  goes  to  the  administrator  or  executor ;  the  right  to 
foreclose  the  mortgage  goes  to  the  administrator,  with  the  debt, 
and  also  the  power  of  sale  contained  in  the  mortgage.  There- 
fore the  administrator  or  executor  of  a  deceased  mortgagee 
with  a  power  of  sale,  may  or  must  execute  the  power  of  sale  if 
it  is  necessary  to  resort  to  the  power  to  collect  the  debt  or 
enforce  the  mortgage."  And  it  is  said  that  this  power  of  sale 
is  in  an  administrator  by  virtue  of  his  being  named  in  the  deed 
of  mortgage,  and  by  virtue  of  an  appointment  in  any  jurisdic- 
tion ;  so  that,  if  the  mortgagee  was  a  non-resident,  and  his 
administrator  is  appointed  by  a  court  foreign  to  the  State  in 
which  the  land  is  situated,  the  administrator  may  execute  the 

1  Ante,  §  284;  Woolridge  v.  Planters'  Bank,  1  Sneed,  297;  Goss  v. 
Singleton,  2  Head,  67;  Duffy  v.  Calvert,  6  Gill,  487;  Gibbs  v.  Marsh, 
2  Met.  243,  253. 

*  Ante,  §  284;  Greenleaf  w.  Queen,  1  Pet.  138. 
^  See  ante,  §  275  et  seq. 

*  Ante,  §  411. 
6  Ante  §  405. 
«  Ante  §  401. 

'  Ante,  §§  838,  495;  Doolittle  v.  Lewis,  7  John.  Ch.  45;  Collins  v. 
Hopkins,  7  lo.  463;  Turner  v.  Johnson,  7  Ohio,  216,  220;  Brewer  r. 
Winchester,  2  Allen,  389;  Anderson  v.  Austin,  34  Barb.  319;  Varnum 
V.  Meserve,  8  Allen,  158 ;  Harnickell  v.  Orndorff,  35  Md.  341. 


§§  602  m-602  o.]  HoW  executed.  165 

power  and  convey  the  land.^  Powers  of  sale  differ  from  deeds 
of  trust  in  another  respect.  Ordinarily  a  trustee  cannot  assign 
or  delegate  his  trust,  or  its  duties  or  powers,  to  another,  and  it 
is  a  breach  of  the  trust  to  attempt  to  do  so  ;  but  powers  of  sale 
in  a  mortgage  may  be  assigned  with  the  debt  and  the  mort- 
gage, and  such  assignee  of  the  mortgage  may  execute  the 
power  of  sale.2  If  the  mortgagee  assigns  the  debt  for  which 
the  mortgage  is  security,  but  does  not  assign  the  mortgage 
deed,  in  equity  he  holds  the  security  and  the  power  of  sale  in 
trust  for  the  assignee  of  the  debt,  and  the  assignee  may  call 
upon  him  to  execute  the  power  ;^  and,  if  he  assigns  a  part  of  the 
debts,  or  a  part  of  the  notes  secured  by  the  mortgage,  he  holds 
the  security  and  the  power  in  trust  joro  tanto.^  But  the  partial 
assignee  of  a  mortgage  cannot  execute  the  jDOwer  of  sale,  as  the 
power  is  not  divisible.^ 

§  602  0.  Trustees  and  mortgagees,  in  the  execution  of  their 
powers,  must  use  the  utmost  good  faith  toward  all  parties  in 
interest.  This  proposition  cannot  be  too  strongly  stated  and 
enforced.  They  must  act  impartially  for  every  person  who  has 
any  rights  in  the  estate.  They  must  use  every  effort  to  sell 
the  estate  under  every  possible  advantage  of  time,  place,  and 
publicity.  They  must  exercise  their  discretion,  so  far  as  they 
have  any,  in  an  intelligent  and  reasonable  manner.  A  mort- 
gagee is  bound,  in  the  exercise  of  his  power,  not  to  use  it  to 
oppress  the  debtor,  nor  to  sacrifice  the  estate.  If  he  unfairly 
or  unnecessarily  prejudices  the  rights  or  interests  of  the  mort- 

'  Doolittle  V.  Lewis,  7  John.  Ch.  45;  Baldwin  ».  Allison,  4  Myin.  25. 

^  Anie,  §§  338,  495;  Strother  v.  Law,  54  111.  413. 

'  Sargent  v.  Howe,  21  111.  148;  Keyes  r.  Wood,  21  Yt.  331,  550;  An- 
derson V.  Baumgartner,  27  Mo.  80  ;  Wood  v.  Snow,  1  IMich.  128;  Sloe  v. 
Manhattan  Co.  1  Paige,  48;  Wilson  v.  Troup,  1  John.  Ch.  25;  2  Cowen, 
195;  Lucas  v.  Harris,  20  111.  1G5  ;  Trustees,  &c.  v.  Prentiss,  29  Miss.  46; 
Hinds  V.  Mooers,  11  lo.  211;  Sangster  v.  Love,  11  lo.  580. 

*  Ibid. 

*  Wilson  V.  Troup,  7  John.  Ch.  25,  2  Cow.  195. 


166  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

gagor,  or  any  other  party,  tlie  sale  may  l)e  set  aside,  as  he  may 
be  made  personally  responsible  for  the  injury. ^  After  the 
power  has  been  exercised,  the  mortgagee  may  bring  a  suit  to 
recover  any  balance  due  to  him  after  applying  the  proceeds  of 
the  sale ;  ])ut  the  mortgagor  may  defend  such  suit,  if  lie  can 
show  that  the  sale  was  unfairly  or  fraudulently  conducted,^  and 
this  he  may  do  although  he  may  still  have  a  right  to  redeem.^ 

§  602p.  It  must  be  constantly  borne  in  mind  that  the  power 
of  sale  given  in  the  deed  or  mortgage  must  be  strictly  followed 
in  all  its  details.  The  power  of  transferring  the  property  of 
one  man  to  another  must  be  followed  strictly,  literally,  and  pre- 
cisely. Such  a  power  admits  of  no  substitution  and  of  no 
equivalent,  even  in  unimportant  detail.  If  the  power  contains 
the  details,  the  parties  have  made  them  important ;  and  no 
change  can  be  made  even  if  the  mortgagor  would  be  benefited 
thereby,  nor  if  a  statute  provides  a  different  manner.  If  the 
power  is  not  executed  as  it  is  given  in  all  particulars,  it  is 
not  executed  at  all,  and  the  mortgagor  etill  has  his  equity  of 
redemption.  And  so,  if  a  statute  of  a  State  regulates  the  exe- 
cution of  these  powers  of  sale,  they  must  be  executed  as  they 
are  created  in  the  deed  and  as  they  are  regulated  by  the  statute. 
When  one  mode  of  executing  such  powersas  pointed  out  in  the 
deed,  and  such  mode  is  regulated  by  statute,  all  other  modes 
of  executing  the  power  are  negatived  and  excluded.^     If,  how- 

'  See  post,  §  770,  and  cases  cited;  Howard  v.  Ames,  3  Met.  311; 
Matthie  v.  Edwards,  2  Coll.  465;  Hobson  v.  Bell,  2  Beav.  17;  Goldsmith 
V.  Osborne,  1  Edw.  Ch.  561 ;  Driver  v.  Fortner,  2  Port.  (Ala.)  9  ;  Prcwett  v. 
Laud,  36  Miss.  495  ;  Richards  v.  Holmes,  18  How.  143 ;  Lane  v.  Tidhall, 

I  Gilm.  (Va.)   132;  Quarles  v.  Lacy,  4  Munf.   251;     Singleton   v.  Scott, 

II  lo.  589,  597;  Jenks  v.  Alexander,  11  Paige,  619;  Hunt  v.  Ball,  2  Dev. 
Eq.  292;  Johnson  j;.  Eason,  3  Ired.  Eq.  330;  Rossett  v.  Fisher,  11  Gratt. 
492 ;  Outwater  v.  Berry,  2  Halst.  Eq.  63. 

*  Howard  v.  Ames,  3  Met.  311  ;  Sabin  v.  Stickney,  9  Vt.  164. 
»  Lowell  V.  North,  4  Min.  32. 

*  Post,  §§  511  a,  511  b,  511  c,  770-785  ;  Greenleaf  r.  Queen,  1  Pet.  138; 
Waldron  v.  Chastney,  2  Blatchf.  62;  Gunter  t;.  Jones,  10  Cal.  643;  Taylor 


§§  602  0,  602  jJ.]       THESE   TRUSTS    STRICTLY   CONSTRUED.  167 

ever,  the  power  is  a  general  power,  and  no  modes  of  executing 
it  are  pointed  out  in  the  power,  it  is  an  authority  to  execute 
the  power  in  any  legal  mode.^  Thus  a  power  to  sell  on  default 
will  not  authorize  a  lease  or  mortgage.^  If  the  trustee  is  to 
sell  partly  for  cash  and  partly  on  credit,  he  cannot  sell  wholly 
for  credit.^  If  the  power  is  to  sell  for  the  amount  then  due 
at  the  time  of  the  sale,  a  sale  for  more  will  be  void.'^  But  a 
sale  to  be  made  in  default  of  payment  of  interest  when  due, 
may  be  made  for  the  whole  amount  of  the  debt.^  If  the  sale  is 
to  be  at  public  auction,  a  private  sale  will  be  set  aside.^  If  the 
power  authorizes  sureties  to  sell  before  they  have  paid  the  debt 
or  have  been  damnified,  they  can  do  so ;  but  if  they  become  tlie 
purchasers,  they  will  hold  the  property  upon  the  original  trust 
or  mortgage,  and  the  mortgagor  may  redeem ; ''  and  powers  of 
sale  may  be  executed  to  secure  future  advances,  but  the  exact 
terms  of  the  mortgage  and  the  power  must  be  complied  with, 
and  the  rights  of  intervening  parties  or  interests  cannot  be 
defeated.^  If  there  are  conditions  precedent,  they  must  all  be 
strictly  complied  with  and  performed  before  a  sale  can  be  made.^ 

V.  Atkins,  1  Burr.  60  ;  Ormsby  v.  Tarascon,  3  Litt.  405 ;  Hawkins  v. 
Kemp,  3  East,  410;  Crosby  v.  Heston,  1  Tex.  225;  Bush  v.  Stamps,  26 
Miss.  463;  Gray  v.  Howard,  14  Mo.  341;  Foster  v.  Goree,  4  Ala.  428; 
Beebe  v.  De  Baum,  3  Eng.  510 ;  Stine  v.  Wilkson,  10  Mo.  75 ;  Baldridge 
V.  Walton,  1  Mo.  520;  Smith  v.  Provin,  4  Allen,  514;  Griffin  v.  Marine  Co. 
62  111.  130;  Elliott  v.  Wood,  53  Barb.  285;  Hall  v.  Towne,  45  111.  493. 
'  Foster  v.  Goree,  4  Ala.  428;  1  Sugd.  Fow.  266. 

*  Post,  §§  768,  769 ;  Walker  v.  Brungard,  13  Sm.  &  M.  723  ;  4  Kent, 
Com.  148;  Sparks  v.  Kearney,  2  Jones,  Eq.  481. 

3  Norman  v.  Hill,  2  Pat.  &  H.  676. 

*  Ormsby  u.' Tai*ascon,  3  Litt.  405. 
=  Richards  v.  Holmes,  18  How.  143. 

*  Greenleaf  y.  Queen,  1  Pet.  138. 

'  Thurston  v.  Prentiss,  1  Mich.  194,  Walker  Ch.  529;  Hawkins  v.  May, 
12  Ala.  673,  5  Porter,  191  ;  Koden  v.  Jaco,  17  Ala.  344;  Wheeler  v. 
Stone,  4  Gill,  38. 

'  Curling  V.  Shuttleworth,  6  Bing.  121. 

»  Post,  §§  784,  785;  Roarty  v.  Mitchell,  7  Gray,  243;  Dutton  v.  Cotton, 
10  lo.  408.  Where  the  power  was  that,  in  case  of  default  in  payment,  the 
mortgagor  might  enter  and  take  possession  and  sell,  it  was  held  that  he 


168  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

So  the  execution  of  the  deed  under  tlie  power  must  correspond 
to  the  power.  If  the  trustee  is  to  execute  the  deed  as  the 
attorney  of  the  debtor,  he  cannot  execute  in  his  own  name.^ 
The  original  purchaser  under  the  power  will  be  held  to  have 
notice  of  all  the  irregularities  of  the  proceedings  of  sale,  and 
his  deed  will  be  void  ;  but  remote  purchasers  will  take  a  good 
title,  unless  they  can  be  affected  with  notice  of  the  irregularities 
attending  the  sale.^ 

§  602  q.  Powers  may  authorize  sales  to  be  public  or  private, 
and  they  must  be  executed  as  they  are  given.  In  the  absence 
of  any  directions  upon  the  subject,  the  sale  may  be  either  public 
or  private,  as  circumstances  render  it  for  the  advantage  of  the 
estate,^  unless  there  are  statutes  that  require  all  sales  under 
powers  to  be  at  public  auction.^  If  the  foi-m  of  notice,  and  the 
manner  of  giving  it,  whether  by  posting  in  public  places  or  by 
advertising  in  a  newspaper,  are  prescribed  in  the  power,  they 
must  be  strictly  followed :  and,  if  the  particular  place  of  notice 
is  named,  notice  must  be  posted  in  that  place ;  if  the  newspaper 
is  named,  publication  of  notice  must  be  made  in  that  paper. 
It  is  not  necessary  to  give  other  notice  of  the  sale  than  that 
prescribed  in  the  power,  but  it  is  necessary  to  follow  the  power 
in  good  faith.^  If  the  notice  named  in  the  power  cannot  be 
given,  as  if  the  newspaper  named  has  ceased  to  be  published, 
the  mortgagee  cannot  sell  without  recourse  to  a  court  of  equity.^ 
If  the  form  of  notice  and  manner  of  giving  it  are  not  prescribed, 
the  mortgagee  must  give  a  proper  notice  in  a  reasonable  man- 
could  not  sell  without  making  an  entry  and  taking  possession.  Roarty  v. 
Mitchell,  7  Gray,  243. 

^  Speer  v.  Hadduck,  31  111.  439.  As  to  the  forms  of  executing  powers 
in  general,  see  ante,  §§  511  a,  511  b,  511  c. 

2  Hamilton  v.  Lubukee,  51  111.  415. 

»  Post,  §§  780-782. 

*  Lawrence  v.  Farmers',  &c.  Co.  3  Kern.  200,  210. 

s  Ormsby  v.  Tarascon,  3  Litt.  405,  411 ;  Crocker  v.  Robertson,  8  Clarke 
(lo.),  404.| 

6  Dutton  r.  Cotton,  10  lo.  408. 


§§  602jp-602r.]  notice  of  sale.  1G9 

ner ;  and,  if  he  fails  to  do  so,  the  sale  will  he  set  aside.^  If  no 
particular  form  is  prescribed,  no  particular  form  is  required.^ 
But  it  should  be  sufficient  to  identify  the  land  and  to  invite 
competition.^  In  Massachusetts,  it  has  been  held  that  the 
notice  should  state  the  name  of  the  owner  of  the  land,  or  of  the 
equity  of  redemption,  and  also  of  the  holder  of  the  mortgage, 
especially  if  the  original  mortgagor  has  sold  his  equity  of 
redemption,  or  if  the  original  mortgagee  has  assigned  the  mort- 
gage ;  and  a  sale  under  a  notice  which  did  not  give  this  full 
information  was  set  aside."^  If  no  specific  directions  are  given 
in  the  power  as  to  where  notices  are  to  be  posted,  or  in  what 
newspapers  publication  is  to  be  made,  the  mortgagee  must  use 
a  fair  and  honest  discretion  in  posting  the  notices,  or  in  select- 
ing the  newspaper  in  which  to  insert  notice  of  the  sale.  K 
the  notices  of  sale  were  posted  in  remote  or  isolated  places, 
where  they  would  be  seen  by  few  persons  and  where  they  could 
give  no  publicity  to  the  sale  and  invite  little  competition,  or  if 
they  were  inserted  in  an  obscure  newspaper,  in  an  obscure 
manner,  or  if  they  were  inserted  in  a  remote  newspaper,  it 
would  be  strong  evidence  of  fraud,  and  the  sale  would  be  set 
aside.^  If  several  lots  in  different  counties  are  embraced  in 
the  same  deed,  notice  of  the  sale  must  be  given  in  different 
counties.^ 

§  602  r.  The  notice  of  the  sale  must  be  certain  as  to  time 
and  ^;i?ace  of  salc,^  and  the  description  must  be  sufficient  to 

1  4  Kent,  Cora.  490 ;  Anon.  G  Mad.  lo. 
'  Post,  §  782. 
'  Ibid. 

*  See  Hoffman  v.  Anthony,  6  R.  I.  282. 

*  Singleton  v.  Scott,  11  lo.  589;  Newman  v.  Jackson,  12  Wheat.  .'J70 ; 
Johnson  v.  Eason,  3  Ired.  Eq.  530;  Jenks  v.  Alexander,  11  Paige,  G19, 
2  Am.  L.  Rev.  (n.  s.)  719. 

«  Wells  r.  Wells,  47  Barb.  416.  But  see  Berthold  v.  Holmes,  12  Min. 
335. 

^  Burnett  v.  Denniston,  5  John.  Ch.  35 ;  Gray  v.  Howard,  14  Mo.  341 ; 
Dana  i;.  Farrington,  4  Min.  437. 


170  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

apprise  the  public  of  what  property  is  to  be  sold.^  Mere  clerical 
errors  or  inaccuracies  or  omissions  in  a  notice,  which  do  not 
mislead  or  which  correct  tliemselvcs  on  their  face,  will  not 
vitiate  a  sale.^  Notice  of  sale  on  the  "  28th  of  December 
next,"  omitting  the  year,  was  held  good  ;  ^  notice  of  a  sale  "  at 
the  town  of  St.  Joseph  "  was  held  good,  the  town  being  small, 
and  no  injury  having  been  done  ;  ^  notice  of  sale  at  "  City  Hall," 
or  "  Merchants'  Exchange,"  or  any  other  public  place,  is  good, 
if  the  sale  is  actually  made  in  that  part  of  such  buildings  or 
place  where  sales  are  usually  made.^  If  the  power  provides 
that  the  sale  shall  be  on  the  premises,  or  names  any  other 
place,  of  course  the  sale  must  be  notified  for  that  place,  and  it 
must  be  made  at  that  place.  Notice  for  sale  on  the  23d  of 
May  was  changed  to  the  25th,  without  the  debtor's  knowledge. 
He  attended  on  the  23d  ;  but  the  sale  was  made  on  the  latter 
day,  and  it  was  held  to  be  void.^  It  is  usual  to  specify  the 
precise  hour  of  the  sale,  and  probably  a  notice  that  did  not 
state  the  hour  of  the  sale  would  be  bad  ; "  but  a  notice  specify- 
ing a  day,  between  twelve  and  five  of  the  clock,  in  the  absence 
of  any  unfair  practice,  was  held  good.^  Where  a  notice  of  sale 
was  given  for  Friday  the  17th,  but  Friday  was  the  16th,  and 
the  correction  was  made  on  Friday  the  16th,  it  was  held  to  be 
void.^  In  Massachusetts,  a  sale  upon  notice  to  be  published 
three  weeks  successively  in  a  newspaper,  is  good,  although  made 
less  than  three  weeks  from  the  time  of  the  first  publication, 

1  Newman   v.    Jackson,  12  Wheat.  570;   Fitzpatrick  v.  Fitzpatrick,  6 
R.  I.  64. 

2  Ibid.;  White  r.  Malcomb,  15  Md.  529;  Rathburn  v.  Clark,  9  Abbott, 
Pr.  (N.  Y.)  12,  66,  n. 

'  Gray  v.  Howard,  14  Mo,  341. 

*  Beattie  v.  Butler,  26  Mo.  313. 

fi  Harmon  v.  Carver,  12  How.  Pr.  (N.  Y.)  490. 

*  Dana  v.  Farrington,  4  Min.  433.     And  so  where  a  mistake  was  made 
in  the  year.     Fenner  v.  Tucker,  6  R.  I.  557. 

'  Fitzpatrick  v.  Pitzpatri.k,  6  R.  I.  64. 

®  Cox  V.  Halstead,  1  Green,  Ch.  311. 

^  Wellman  v.  Lawrence,  15  Mass.  326;  Fenner  v.  Tucker,  6  R.  I.  551. 


§§  602  r,  602  s.]  statements  in  notice.  171 

provided  there  has  been  a  publication  of  the  notice  three 
successive  weeks  before  tlie  sale.^  In  New  York,  if  a  notice 
is  to  be  given  once  in  each  week  for  twelve  successive  weeks, 
the  first  publication  must  be  eighty-four  days,  or  twelve  full 
weeks,  before  the  day  of  the  sale.^  If  thirty  days'  notice  is 
required,  there  need  not  be  thirty  days  between  the  first  and 
last  publication,  but  thirty  days  between  the  first  publication 
and  the  day  of  the  sale.  The  publication  of  the  notice  must 
be  continued  for  the  requisite  time.^  Where  twenty  days' 
notice  in  two  daily  new^spapers  was  required,  it  was  held  not 
to  be  necessary  that  daily  notice  should  be  given  in  each  news- 
paper.* 

§  602  s.  All  the  statements  made  in  the  notice,  or  required 
to  be  stated  in  a  notice,  must  be  stated  truly  and  according  to 
the  facts.  Thus,  where  the  notice  stated  that  the  premises 
were  to  be  sold  for  default  upon  three  mortgages,  and  there 
were  but  two,  the  equity  of  redemption  was  not  bound.^  The 
power  is  to  sell  the  estate,  not  the  equity  of  redemption, 
although  the  sale  operates  as  a  foreclosure  ;  and  the  notice 
must  state  that  it  is  to  be  a  sale  of  the  estate,  and  not  of  the 
mere  equity  of  redemption.^  If  neither  the  power  nor  any 
statute  requires  the  amount  of  the  claim  or  debt,  for  which  the 
sale  is  made,  to  be  stated,  it  need  not  be  stated  in  the  notice, 
and  the  sale  will  not  be  affected  by  such  omission  ;"  but,  if  such 
statement  in  the  notice  is  required  by  the  power  or  by  a  statute, 

'  Frothingham  v.  March,  1  Mass.  247. 

2  Bunce  ?;.  Reed,  Ki  Barl).  3oU;  Early  v.  Doe,  IG  How.  GIO;  Howard  v. 
Hatcli,  29  Barb.  297;  VVorley  v.  Naylor,  G  Miii.  192. 

3  Bunce  v.  Rccd,  10  Barb.  350;  Stiue  v.  Wilkson,  10  ]Mo.  75;  Leffer  v. 
Armstrong,  4  lo.  482. 

^  White  V.  Malcomb,  15  Md.  529.  See  also  Johnson  v.  Dorsey,  7  Gill, 
286 ;  Gibbs  v.  Cunningham,  1  Md.  Ch.  44. 

*  Bennett  v.  Denniston,  5. John.  Ch,  35;  Johnson  v.  Turner,  7  Ohio,  216; 
Matthie  v.  Edwards,  2  Coll.  465. 

°  Merrill  v.  Fowle,  10  Allen.  350. 

'  Wiswall  V.  Ross,  4  Port.  (Ala  )  321. 


172  TRUSTS    FOR    CREDITORS.  [CHAP.  XX. 

the  amount  of  the  debt  must  be  stated  with  substantial  accu- 
racy;  ^  or  if,  not  being  required,  a  greatly  exaggerated  claim 
should  be  fraudulently  stated  in  the  notice,  the  sale  would  not 
bar  the  equity  of  redemption .^  So,  if  the  sale  is  proposed  to 
be  made  for  more  than  is  due  to  the  creditor,  equity  will 
restrain  the  sale ;  ^  and,  if  actually  made,  it  will  be  set  aside.* 

§  602  f.  If  the  notices  of  sale  are  not  made  and  published 
according  to  the  power,  the  sale  is  absolutely  void,  not  merely 
voidable,  and  no  title  passes  to  the  purchasers.  This  is  upon 
the  ground  that  the  power  was  not  executed  according  to  the 
terms  of  it  upon  its  face ;  ^  and  so  if  a  sale  is  made  upon  a 
wrong  day  or  at  a  wrong  place.^  After  the  lapse  "of  along 
time,  however,  courts  will  presume  that  every  thing  was  cor- 
rectly done  which  the  power  or  the  law  required  to  be  done,'^ 
and  the  mortgagor  or  grantor  and  his  privies  in  blood  or  estate, 
or  the  parties  having  a  right  in  the  estate,  can  alone  object  to 
any  defects  in  the  proceedings.  Strangers  have  no  rights  in 
the  estate,  and  cannot  take  advantage  of  such  informalities  for 
any  purpose.^ 

§  602  u.  If  an  adjournment  of  the  sale  is  not  prohibited  by 
the  power,  the  donee  of  the  power  may  adjourn  the  sale  to 

1  Burnett  v.  Denniston,  5  John.  Ch.  35;  Johnson  v.  Turner,  7  Ohio,  216. 

'  Klock  V.  Cronkhite,  1  Hill,  107;  Jenks  v.  Alexander,  11  Paige,  619; 
Bunce  v.  Reed,  16  Barb.  347;  Spencer  v.  Anon.  4  Min.  544;  Ramsey  v. 
Merriam,  6  Min.  168. 

^  Ibid. 

*  Ibid. 

6  Bunce  v.  Reed,  16  Barb.  350;  Baldridge  v.  Walton,  1  Mo.  520;  Gibson 
V.  Jones,  5  Leigh,  370;  Jackson  v.  Clark,  7  John.  217,  220;  Bigler  v. 
Walker,  14  Wall.  297. 

^  INIillerT.  Hull,  4  Denio,  104;  Dana  v.  Farrington,  4  Min.  433. 

'  Bergen  v.  Bennett,  1  Caines,  Cas.  Er.  1;  Demarest  v.  Wynkoop,  3 
John.  Ch.  129. 

«  Edmondson  v.  Walsh,  27  Ala.  578;  Wightman  v.  Doe,  24  Miss.  675; 
Casy  V.  Colvin,  11  Ala.  514 ;  Hellegas  v.  Hellegas,  5  Barr.  97  ;  Franklin  v. 
Greene,  2  Alien,  519. 


§§  602  S-602  v.]        TRUSTEES    CAN   NOT   PURCHASE.  173 

another  time  and  to  another  place.  Such  power  is  imj)lied. 
Of  course  it  is  a  discretionary  power,  and  must  be  exercised  in 
good  faith  ;  it  may  be  the  clear  duti/  of  the  trustee  to  adjourn 
the  sale,  and  evidence  of  bad'  faith  not  to  adjourn ;  as  if  there 
are  few  or  no  purchasers  present,  and  the  l>ids  are  very  low 
and  inadequate,  to  the  value  of  the  property.^  Tlie  adjourn- 
ment should  regularly  be  made  at  the  time  and  place  of  sale  ; 
public  proclamation  should  be  made  of  it  at  the  time ;  and, 
if  there  is  nothing  in  the  power  or  in  any  statute,  the  same 
notice  of  sale  should  be  given  as  was  given  in  the  first  instance,^ 
except  that  it  need  not  be  for  the  same  length  of  time  ;  ^  but 
the  adjournment  made  on  the  premises  and  the  putjlished  notice 
of  it  should  correspond.*  If  notice  of  an  intended  adjournment 
should  be  published,  and  the  sale  should  notwithstanding  be 
made  on  the  day  originally  appointed,  it  would  be  void.^ 

§  602  y.  It  is  necessary  to  repeat,  on  every  occasion,  tliat  a 
trustee  for  sale,  and  a  mortgagee  with  a  power  of  sale  or  the 
assignee,  cannot  execute  the  trust  or  the  power  in  favor  of 
themselves.^  A  trustee  cannot  purchase  the  trust  property 
directly  or  indirectly,  nor  can  the  mortgagee,  under  a  power  of 
sale  mortgage,  purchase  directly  or  indirectly.  He  cannot  pur- 
chase for  himself,  nor  can  any  one  purchase  for  him,  nor  can 

'  Richard  v.  Holmes,  18  IIow.  143  ;  Jackson  v.  Clark,  7  Jolins.  217,  225; 
Sayles  t\  Smith,  12  Wend.  57;  Miller  v.  Hall,  4  Dunio,  101;  Baldridge  v. 
Walton,  1  Mo.  520. 

"  Richard  v.  Holmes,  18  How.  147;  Johnson  v.  Eason,  3  Ired.  Eq.  3G6. 
If  a  postponement  is  duly  proclaimed  at  the  time  and  place  advertised  for  the 
sale,  new  notices  need  not  be  given  in  any  State.  Cox  v.  Halstead,  1  Green, 
Ch.  311;  1  Stockt.  2iS7.  But  a  postponement  may  be  made  before  the  day 
of  sale  arrives.     Bennett  i;.  Brundage,  8  Min.  432. 

'  Jackson  v.  Clark,  7  Johns.  217,  225;  Dana  v.  Farrington,  4  Min.  433. 

♦  Miller  v.  Hull,  4  Denio,  104;  Cole  v.  Moffit,  2  Barb.  18;  Sayles  v. 
Smith,  12  Wend.  57 ;  Westgate  v.  Handlin,  7  How.  Pr.  (N.  Y.)  372. 

*  Jackson  v.  Clark,  7  Johns.  217. 

«  Ante,  §  254;  ;w5/,  §§  511  a,  511  b,  511  c,  787;  Allen  v.  Cliatfield, 
8  Min.  455;  Mapps  v.  Sharpe,  32  111.  13;  Grillin  l-.  Marine  Cu.  o'J  111.  130. 


174  TRUSTS   FOR    CREDITORS.  [CHAP.  XX. 

he  purchase  as  agent  for  any  "third  person.  Nor  can  any  agent, 
auctioneer,  attorney,  or  otlier  person  employed  in  tlie  selling  of 
the  estate,  purchase  it  for  the  mortgagee  or  for  tliemselves  or 
for  any  other  person.^  There  is  so  much  danger  of  fraud  or 
collusion,  and  it  is  so  difficult  to  trace  and  expose  them,  in  the 
execution  of  such  powers,  that  the  law  has  placed  almost  an 
absolute  prohil)ition  in  the  front  of  such  an  execution  of  trusts 
or  powers.^  If,  however,  a  trustee  or  mortgagee  buys  in  a  prior 
mortgage,  he  will  hold  it  in  trust  for  the  cestui  que  trust  or 
mortgagor,  with  the  right  of  being  reimbursed  for  so  much  as 
he  fairly  paid  for  such  mortgage.^  If  a  trustee  or  mortgagee 
purchases  the  property  thus  within  their  power  to  sell,  and  the 
title  is  conveyed  to  them,  either  directly  or  indirectly,  through 
a  third  person,  they  wnll  continue  to  hold  the  property  upon 
the  old  trust,  or  the  mortgagor  may  redeem.  They  have  not 
advanced  the  execution  of  the  trust  or  the  foreclosure  of  the 
mortgage.*  The  cestui  que  trust  may,  however,  buy  in  the 
property.^    And  so  the  power  itself  may  authorize  the  mort- 

^  Ante,  §§  195,  199,  and  cases  cited;  Arnot  v.  McClure,  4  Denio,  41; 
Hall  V.  Tovvne,  45  111.  493;  Jackson  v.  Calden,  4  Cow.  266  ;  Huff  v.  Earle. 
3  Port.  (Ind.)  306  ;  Nichols  v.  Baxter,  5  R.  I.  491  ;  Parmenter  «.  Walker, 
9  R,  I.  225  ;  Hyndman  v.  Hyndman,  19  Vt.  9;  Pettibone  v.  Perkins,  6 
AVis.  616;  Bailey  v.  Robinson,  1  Grat.  4;  Robinson  v.  Butler,  24  111.  387  ; 
Saltniarsh  v.  Burn,  4  Port.  283  ;  Blackley  v.  Fowler,  21  Cal.  326  ;  Jeffer- 
sonville  Assoc,  v.  Fisher,  7  Port.  (Ind.)  699 ;  Bunce  v.  Reed,  16  Barb.  347  ; 
Sabin  v.  Stickney,  9  Vt.  164  ;  Field  v.  Arrowsniith,  3  Humph.  442  ;  Hunt  v 
Bass,  2  Dev.  Eq.  292  ;  Hester  v.  Hester,  3  Ired.  Eq.  330;  Scott  v.  Gamble, 
1  Stockt.  218;  Remick  v.  Butterfield,  11  Foster,  70;  Winter  v.  Geroe,  1 
Halstead,  Ch.  319;  Armstrong  v.  Campbell,  3  Yerger,  201  ;  Ringgold  v. 
Ringgold,  1  Har.  &  Gill,  11.  But  it  is  said  that  such  sale  by  the  mortgagee 
to  himself  is  not  void,  but  voidable  only,  at  the  instance  of  the  mortgagor. 
Robinson  v.  CuUom,  41  Ala.  693 ;  Thornton  v.  Irwin,  43  Mo.  153. 

'  Ante,  §§  195-197. 

'  Critchfield  v.  Haynes,  14  Ala.  49  ;  Gunter  v.  Jones,  9  Cal.  643;  Jones 
V.  Dawson,  9  Ala.  672. 

*  Hyndman  v.  Hyndman,  19  Vt.  1  ;  Benhani  r.  Rowc,  2  Cal.  387. 

^  Lyons  V.  Jones,  6  Humph.  533  ;  Wade  v.  Harper,  3  Yerger,  883  ; 
Walker  v.  Brungard,  13  Sm.  &  M.  723;  Lucas  v.  Oliver,  34  Ala.  626; 
Richards  v.  Holmes,  IS  How.  143. 


§§  602  V-Q02  2'.]  EFFECT  OF  SALES.  175 

gagee  to  purchase,  or  the  statutes  of  a  State  upon  that  subject 
may  authorize  such  purchase.^ 

§  G02  w.  This  distinction  must  be  carried  along.  If  a 
trustee  or  mortgagee  with  a  power  of  sale  should  execute  a 
deed  under  the  trust  or  power  directly  to  himself,  the  deed 
would  be  simply  void,  and  would  pass  nothing  or  make  no 
change  in  the  situations  and  relations  of  the  parties,  on  the 
ground  that  no  man  can  contract  Avith  himself,  or  make  a  deed 
to  himself,  or  from  himself  in  one  capacity  to  himself  in  an- 
other ;-  but,  if  a  mortgagee  or  trustee  execute  deeds  to  tliird 
persons,  and  take  back  the  title  to  themselves,  such  deeds  are 
not  void,  but  voidalde  only ;  and  the  cestui  que  ti-ust  or  mort- 
gagor can  avoid  them,  or  compel  the  purchaser  to  keep  the 
property  and  pay  the  money .^  And  such  deeds  are  voidable 
by  the  cestuis  que  trust  alone :  tliird  persons  cannot  interfere.* 
It  follows  that,  if  the  cestuis  que  trust  are  sui  juris,  they  must 
elect  to  avoid  the  deed  within  a  reasonable  time  after  the  facts 
come  to  their  knowledge.^  The  deed  being  voidable  only,  an 
innocent  jnirchaser  from  the  trustee,  for  value  and  without 
notice,  will  take  an  indefeasible  title. "^ 

§  602  a;.  Sales  under  powers  in  deeds  of  trust  or  mortgage 
are  a  harsh  mode  of  foreclosing  tlie  rights  of  the  mortgagor. 
They  are  scrutinized  by  courts  with  great  care,  and  will  not  be 
sustained  unless   conducted  with   all  fairness,  regularity,  and 

^  Ramsey  D.  Mcrriam,  6  Min.  1G8;  Griffin  v.  Marine  Co.  52  111.  130; 
Elliott  V.  Wood,  53  Barb.  285. 

2  Ante,  §  207,  1  Sugd.  V.  &  P.  97  (8th  Am.  ed.). 

'  Ante,  §  198,  and  cases;  Pitt  r.  Pitnay,  12  Ired,  L.  G9;  Brothers  v. 
Brothers,  7  Ired.  Eq.  1.^0;   Parmenter  v.  Walker,  9  R.  I.  225. 

*  Edmondson  v.  Walsh,  27  Ala.  578. 

*  Scott  V.  Freeland,  7  Sin.  &  M.  409. 

*  Robhins  v.  Bates,  4  Cush.  104;  Cranston  r.  Crane,  97  Mass.  459; 
Montague  v.  Dawes,  12  Allen,  397. 


176  TRUSTS  FOR  CREDITORS.         [CHAP.  XX. 

scrupulous  integrity.!  Upon  very  slight  proof  of  fraud,  or 
unfair  conduct,  or  of  any  departure  from  the  terms  of  the 
power,  they  will  be  set  aside.^  If  proper  notices  of  the  sale 
are  not  given,  or  if  the  proceedings  are  in  any  way  contrary  to 
justice  and  equity,  the  sale  will  not  be  allowed  to  stand.-^  And 
so,  as  tlie  trustee  cannot  delegate  his  power  or  duty,  if  the 
power  is  not  executed  by  the  proper  person,  or  in  good  faith, 
or  with  due  diligence,  or  if  proper  notices  have  not  been  given, 
or  if  the  power  has  been  extinguished,  sales  under  it  will  be 
set  aside."^  Thus  if  the  mortgagee  should  deceive  the  debtor 
by  a  promise  to  extend  the  time  of  payment,  and  the  debtor, 
relying  on  such  promise,  should  go  away  temporarily,  a  sale 
made  in  his  absence  would  be  set  aside.^  So  also  of  a  sale 
made  in  violation  of  an  agreement  to  extend  the  time.^  So  a 
sale  will  be  set  aside  if  the  creditor  is  guilty  of  any  fraud  or 
collusion,  or  if  he  pursues  a  course  calculated  to  prevent  com- 
petitionJ  So  the  sale  will  be  set  aside  if  made  after  the  full 
amount  of  the  debt  is  paid  ^  or  tendered.^  A  sale  ought  not  to 
be  made  when  the  debt  is  uncertain  or  in  dispute  ;  and,  if  made, 
it  may  be  set  aside. ^"^  But  the  expression  of  an  erroneous 
opinion  at  the  sale,  upon  any  sul)ject,  by  third  persons  is  not  a 
ground  for  setting  the  sale  aside ;  ^^  nor  will  an  innocent  pur- 

^  Bloom  V.  Rensselaer,  15  111.  507. 

*  Longwith  V.  Butler,  3  Gilman,  32,  44;  Dana  v.  Farrington,  4  Min. 
433;  Spenser  v.  Anon.  4  Min.  542. 

'  Bronson  v.  Kinsie,  1  How.  321;  Singleton  v.  Scott,  10  lo.  408;  King 
V.  Duntz,  11  Barb.  191. 

*  Rowan  v.  Lamb,  4  G.  Greene,  4G8  ;  Johnson  v.  Eason,  3  Ired.  330; 
Jenks  V.  Alexander,  11  Paige,  619. 

*  Sclioonhoven  v.  Pratt,  25  111.  457. 
6  Ibid. 

^  Longwith  v.  Butler,  3  Gilman,  32. 

*  Wade  V.  Harper,  3  Yerg.  383 ;  Cameron  v.  Irwin,  5  Hill,  272 ;  Led- 
yard  v.  Chapin,  6  Port.  (Ind.)  320  ;  Sherman,  3  Porter  (Ind.),  320.  See 
Montague  v.  Dawes,  12  Allen,  397  ;  Cranston  v.  Crane,  97  Mass.  3G9. 

*  Burnett  v.  Denniston,  5  John.  Ch.  35. 

'"  Gibson  v.  Jones,  5  Leigh,  370;  Lane  v.  Tidhall,  1  Gilmer,  230. 
^^  Bloom  V.  Rensselaer,  15  111.  503. 


§§  602  2;-602  z.]  sale  in  lots.  177 

chaser  be  affected  by  private  agreements  to  extend  the  time  of 
payment  not  recorded  and  not  notified  to  him.^ 

§  602?/.  The  directions  of  the  power  must  be  complied  with 
in  selling  the  property  as  a  whole  or  in  lots  or  parcels.  If  a 
sale  in  either  mode  is  excluded,  the  sale  must  not  be  made  in 
that  mode.  If  nothing  is  said  about  the  manner  of  selling, 
whether  by  parcels  or  not,  the  donee  of  the  power  must  exer- 
cise a  sound  and  wise  discretion  for  the  i)urpose  of  procuring 
the  largest  price  for  the  property,  and  if  he  exercises  such 
discretion  with  due  diligence  and  without  fraud  or  collusion  or 
for  improper  purposes,  the  sale  will  be  good  whether  he  sell  in 
parcels  or  the  whole.^  A  sale  may  be  made  in  parcels,  although 
the  property  is  advertised  as  a  whole,  if  a  proper  exercise  of 
the  trustee's  discretion  points  out  such  mode.^  It  has  been 
said  that  if  the  purchaser  is  ignorant  of  any  abuse  in  the  exer- 
cise of  the  discretion  of  the  trustee,  he  will  take  a  good  title, 
although  the  trustee  abused  his  power ;  but  this  may  be 
doubted.^  If  the  value  of  the  property  is  greatly  above  the 
amount  of  the  mortgage,  and  the  creditor  sells  in  lots,  he  can- 
not sell  after  he  has  sold  enough  to  satisfy  his  debts,  and  the 
court  may  decree  a  sale  by  lots  or  of  part  of  the  estate.^ 

§  602  z.  The  sale  will  not  be  set  aside  for  mere  inadequacy 
of  price,  if  due  diligence  was  used  by  the  donee  of  the  power 
to  sell  under  every  possible  advantage.*^  But  there  may  be 
cases  where  the  price  is  so  grossly  inadequate  that  the  mere 
statement  of  it  demonstrates  that  there  nnist  have  been  some 

'  Beattie  v.  Butler,  21  Mo.  313. 

2  Post,  §  774,  and  cases  cited.  Quarles  v.  Lacy,  4  INIunf.  25 ;  Singleton 
V.  Scott,  11  lo.  589;  Turner  v.  Joiinson,  10  Ohio,  204;  7  Ohio,  216;  Laui- 
erson  v.  Morvin,  8  Barb.  9. 

3  Gray  v.  Howard,  14  Mo.  341. 
"  Singleton  v.  Scott,  11  lo.  597. 

^  Johnson  v.  Williams,  4  Min.  2G0. 

•  See  ante,  §  187  ;  Singleton  i-.  Scott,  11  To.  589. 

TOL.  II.  12 


178  TRUSTS   FOR   CREDITORS.  [CHAP.  XX. 

mismanagement  or  collusion,  as  if  land  worth  $500  should  be 
sold  for  $50.^  In  such  case,  if  the  bidders  are  few,  and  the  sum 
offered  low,  the  trustee  should  exercise  his  discretion  to  ad- 
journ the  sale,  and  not  to  do  so  might  be  fraud,  which  would 
demand  that  the  sale  should  be  avoided.^  If,  however,  the  price 
is  rendered  inadequate  by  any  action  of  the  cestui  que  trust,  as 
by  his  forbidding  the  sale,  or  by  any  other  conduct,  the  sale 
will  be  good  if  the  trustee  acted  in  good  faith.'^ 

§  602  aa.  In  a  conveyance  to  a  trustee  or  mortgagee,  the  title 
as  between  the  grantor  or  mortgagor  and  the  trustee  passes  to 
the  trustee  or  mortgagee.  A  trustee  who  has  the  fee  in  himself 
may  convey  it  even  if  the  conveyance  is  a  breach  of  the  trust,  and 
his  grantee  takes  a  title  upon  which  he  can  maintain  actions  at 
law.  And  so  it  is  said  that,  although  a  trustee  may  convey  the 
legal  title  in  breach  of  the  trust,  and  without  complying  with  the 
power,  yet  the  grantee  will  take  a  title  good  at  law.*  But  such 
a  purchaser  in  equity  will  still  hold  the  property  upon  the  same 
trusts  upon  which  the  trustee  held  it,  for  the  reason  that  the 

'-  See  ante,  §  187  ;  Wright  v.  Wilson.  2  Yerg.  294. 

2  Ante,  §  602,  n. ;  Runkle  v.  Gaylord,  1  Nev.  123 ;  Encking  v.  Sim- 
monds,  28  Wis.  272;  Horsey  v.  Hough,  38  Md.  130;  Marfield  v.  Ross,  38 
Md.  85. 

»  Jones  V.  Neale,  2  Pat.  &  H.  (Va.)  339;  Forde  v.  Herron,  4  Munf. 
316. 

«  Ante,  §§  321,  328,  334;  Reece  v.  Allen,  5  Gilra.  236  ;  Taylor  v.  King, 
6  Munf.  356;  Harris  v.  Harris,  6  Munf.  367;  Carrington  v.  Goddin,  13 
Grat.  600 ;  Gibson  v.  Jones,  5  Leigh,  370 ;  Christian  v.  Yancey,  2  Pat.  & 
H.  240;  Skepworth  v.  Cunningham,  8  Leigh,  271;  10  Leigh,  183;  Stimp- 
son  V.  Fries,  2  Jones  Eq.  136 ;  Newman  v.  Jackson,  12  Wheat.  270 ; 
Rowan  v.  Lamb,  4  G.  Green,  468;  Conoy  v.  Troutman,  7  Ired.  L.  418; 
Singleton  v.  Scott,  11  lo.  589;  Gale  v.  Mensing,  20  Mo.  461;  Bank  v. 
Benning,  4  Cranch,  C.  C.  81;  Jackson  v.  Clark,  7  John.  217;  Miller  r. 
Hull,  4  Denio,  104;  King  v.  Buntz,  11  Barb.  192;  Sherwood  v.  Reed,  7 
Hill,  431  ;  Dana  v.  Davenport,  4  Munf.  433 ;  Huntley  v.  Buckner,  6  Sm. 
&  M.  7 ;  Brown  v.  Bartee,  10  Sm.  &  M.  268.  This  rule  is  founded  upon 
a  general  principle,  and  prevails  in  all  the  States ;  see  ante,  §  334,  except  in 
New  York,  which  converts  the  title  of  a  trustee  into  a  power  by  forbidding 
and  making  void  all  sales  in  breach  of  the  trust. 


§§  602  z-602  bb.]     what  the  sale  passes.  179 

purchaser  will  be  held  to  know  the  record  title  of  his  vendor. 
He  will  have  notice  of  the  trust  and  of  the  power,  and  must  be 
treated  in  equity  as  a  trustee.^  The  law  regards  only  the  legal 
title  ;  if  that  passes,  it  will  prevail  at  law  ;  but  if  a  trustee  has 
not  the  legal  title  but  only  a  naked  power  over  it,  the  legal 
title  does  not  pass  unless  the  power  is  strictly  executed  accord- 
ing to  its  terms.  A  trustee  cannot  bind  the  trust  fund  in  his 
hands  by  entering  into  covenants  in  respect  to  it,  and  he  is  not 
authorized  so  to  do.  Therefore  courts  will  not  compel  him  to 
covenant  except  against  his  own  acts.  If,  however,  he  enters 
into  covenants,  he  will  only  bind  himself  personally.  It  is  his 
duty,  however,  to  make  a  good  title,  and  if  in  his  proposal  for 
sale  he  states  that  the  title  is  good,  or  that  there  is  to  be  a  good 
title,  he  cannot  compel  the  purchaser  to  complete  the  sale  if  it 
is  otherwise.^  If  the  trustee  once  executes  the  power  by  a  sale 
and  deed,  his  power  is  extinguished,  and  he  cannot  afterwards 
give  a  new  deed  or  make  any  recitals  or  admissions  binding 
upon  the  parties.^ 

§  602  bb.  The  execution  of  the  power  of  sale  in  a  deed  of 
trust  or  mortgage  conveys  the  title  to  the  mortgaged  land  to 
the  purchaser,  and  deprives  the  mortgagee  of  all  interest  in  the 
premises,*  and  it  bars  the  rights  of  all  persons  claiming  under 
the  mortgagor  by  conveyances  made  subsequent  to  the  crea- 
tion of  the  power  or  in  other  ways.^    The  purchaser's  title,  if 

>  Norman  v.  Hill,  2  Pat.  &  H.  676 ;  Rowan  v.  Lamb,  4  G.  Green,  468; 
Singleton  v.  Scott,  11  lo.  589;  Newman  v.  Jackson,  12  Wheat.  o70;  Wal- 
dron  V.  Chastney,  2  Blatchf.  62  ;  Bayard  v.  Colefax,  4  Wash.  C.  C.  38. 
In  equity  a  purchaser  of  a  trustee  under  a  power  must  show  that  the  sale 
■was  regular,  that  due  notices  were  given,  and  lie  must  prove  all  the  facts 
that  make  a  good  title.  Gibson  v.  Jones,  5  Leigh,  370;  Norman  v.  Ilill, 
2  Pat.  &  H.  67G. 

'  Post,  §§  784,  787;  Ennis  v.  Leach,  1  Ired.  Eq.  416. 

8  Doe  V.  Robinson,  24  Miss.  688. 

*  Clay  V.  Sharp,  Sugd.  V.  &  P.  Appendix  No.  14;  Corder  v.  IMorgan, 
18  Ves.  344;  Sims  r.  Huntley,  2  How.  (Miss.)  896;  Tuthill  v.  Tracv,  31 
N.  Y.  157. 

*  Corder  v.  Morgan,   18  Ves.  344;  Turner  v.  Johnson,  10  Ohio,  204; 


180  TRUSTS    FOR   CREDITORS.  [CHAP.  XX. 

the  power  has  been  properly  and  regularly  executed,  is  absolute 
and  irredeen^able,  and  the  sale  bars  infants,  heirs,  and  married 
women  of  their  dower.^  The  purpose  of  the  power  is  to  extin- 
guish the  equity  of  redemption  of  the  mortgagor ;  ^  and,  after 
its  regular  execution,  his  only  right  is  to  the  surplus  that  may 
remain  after  the  liquidation  of  the  debt  for  which  the  property 
was  sold.  If  he  remains  in  possession  of  the  premises,  he  is 
a  mere  tenant  at  sufferance,^  and  the  purchaser  is  entitled  to 
the  crops  growing  upon  the  land  at  the  time  of  the  sale.^  The 
statutes  of  the  States  that  provide  for  redemption  upon  sales  by 
license  of  courts,  or  upon  executions,  have  no  application  to 
sales  under  powers.^  But  if  there  are  statutes  in  any  State 
broad  enough  to  give  a  right  of  redemption  for  a  certain  time 
after  a  sale  under  a  power,  the  sale  confers  an  inchoate  title 
upon  the  purchaser,  subject  to  be  defeated  if  redeemed  within 
the  time,  and  to  become  absolute,  if  not  redeemed,  and  it  then 
relates  back  to  the  time  of  purchase.  When  the  title  becomes 
thus  perfected,  the  purchaser  may  maintain  an  action  for  injury 
to  the  premises  by  the  mortgagor  or  others  after  the  purchase, 
and  before  the  title  becomes  irredeemable.*^  A  sale  under  such 
prior  power  cuts  off  all  subsequent  mortgages,  attachments, 
judgments,  and  liens,"  even  although  the  sale  should  be  made  to 
the  mortgagor.^     But  a  sale  under  a  junior  power  of  sale  mort- 

Eaton  V.  Whiting,  3  Pick.  484  ;  Brisbane  v.  Stoughton,  17  Ohio,  482 ;  Bloom 
V.  Rensselaer,  15  111.  506;  Bancroft  v.  Ashhurst,  2  Grant,  Cas.  513. 

1  Demarestr.  Wynkoop,  3  Johns.  Ch.  129;  Burnellt  v.  Denniston,  7  John. 
Ch.  46;  Johnson  v.  Turner,  10  Ohio,  204;  7  Ohio,  216  ;  Brackett  t7.Baum, 
50  N.  Y.  8. 

*  Calkins  v.  Ishell,  20  N.  Y.  147. 

3  Kinsley  v.  Ames,  2  Met.  29 ;  Bank  v.  Guttschlick,  14  Pet.  19. 
"  Shepherd  v.  Philbrick,  2  Denio,  174. 

*  Bloom  V.  Rensselaer,  16  111.  503. 

«  Stone  V.  Keyes,  2  Doug.  184;  Reil  v.  Baker,  2  Denio,  79;  Smith  v. 
Colvin,  7  Barb.  157. 

7  Wiswall  V.  Ross,  4  Port.  (Ala.)  321 ;  Brown  v.  Bartee,  10  Sm.  &  M. 
268;  Bodine  v.  Moore,  18  N.  Y.  347;  Pahlman  v.  Shumway,  24  111.  127; 
CoUyer  v.  Collins,  9  lo.  127. 

8  Brown  v.  Bartee,  10  Sm.  &  M.  268. 


§§  602  6&-602  c7ti]         redemption  after  sale.  181 

gage  conveys  only  the  equity  of  redemption.  It  cuts  off  all 
liens,  attachments,  and  judgments  subsequent  to  the  power 
under  which  it  was  made,  but  does  not  affect  prior  ones.^  A 
sale  under  a  power  which  does  not  pass  the  title  may  yet  oper- 
ate as  an  assignment  of  the  mortgage  debt  or  a  part  of  it.^ 
The  same  rules  apply  to  the  enforcement  of  sales  and  purchases 
under  these  powers  as  apply  to  other  sales  by  trustees.-^  After 
a  sale  has  been  made  under  a  power,  a  tender  of  the  amount 
of  the  debt  will  not  revest  the  title  in  the  mortgagor  even  when 
there  is  a  right  to  redeem,  but  recourse  must  be  had  to  a  court 
of  equity ."*  It  follows  that  the  creditor,  in  making  the  sale, 
is  absolutely  accountable  for  the  proceeds  of  the  sale  ;  if  he 
gives  any  credit,  or  the  money  is  lost  in  any  way,  he  must  still 
account  for  it.^ 

§  602  cc.  If  a  power  of  sale  in  a  mortgage  or  deed  of  trust 
in  the  nature  of  a  mortgage  is  not  regularly  executed,  the  right 
of  redemption  is  not  foreclosed  or  barred ;  but  the  mortgagor 
may  still  redeem  the  estate  of  the  purchaser.  Therefore,  it  is 
said  that  a  bill  in  equity  cannot  be  sustained  to  set  aside  such 
sale,  but  that  the  bill  should  be  framed  as  for  a  bill  to  redeem. 
If  the  sale  is  relied  upon  as  a  bar  to  redemption,  its  regularity 
according  to  the  power  must  be  shown.^ 

§  602  M.  The  provisions  in  the  power  limiting  and  regulat- 
ing the  sale  are  for  the  benefit  of  the  debtor.  They  are  for  his 
protection,  and  they  may  be  waived  by  him,  or  his  conduct 

'  Graham  v.  King,  15  Ala.  568. 

*  Gilbert  i\  Cooley,  Walk.  Ch.  494 ;  Grosvenor  v.  Day,  1  Clark,  10!) ; 
Jackson  v.  Bowen,  7  Cow.  lo. 

3  Hem  v.  Rushowski,  18  Mo.  216. 
*■  Smith  V.  Anders,  21  Ala.  728. 

*  Bailey  v.  .i^tna  Ins.  Co.  10  Allen,  286. 

«  Goldsmith  v.  Osborne,  1  Edw.  Ch.  560;  Schwarz  v.  Sears,  Walk.  Ch. 
170.  This  may  be  the  rule  to  avoid  circuity  of  action.  The  opposite  doc- 
trine was  held  in  Driver  y.  Fortner,  5  Port.  (Ala.)  9. 


182  TRUSTS   FOR   CREDITORS.  [CHAP.  XX. 

may  estop  him  from  taking  advantage  of  any  irregularities,  as 
if  being  present  at  the  sale  and  knowing  of  the  irregularity 
he  should  make  no  objection,  but  permit  the  sale  to  proceed,  or 
if  he  should  procure  some  one  to  purchase  the  property  under 
such  circumstances.  Any  conduct  of  the  debtor  that  would 
render  it  inequitable  for  him  to  take  advantage  of  such  defects 
would  debar  him  from  setting  them  up.^  And  so  if  the  debtor 
has  acquiesced  in  the  sale  for  a  long  time,  and  has  seen  the 
property  resold  to  innocent  purchasers,  or  has  seen  valuable 
improvements  made  upon  the  land,  or  has  in  any  way  been  guilty 
of  negligence  or  laches  in  claiming  his  rights,  equity  will  not 
interfere  in  his  favor.^  Nor  wnll  equity  interfere  at  the  sugges- 
tion of  strangers  who  show  no  interest  in  the  property ,2  nor 
when  the  sale  is  in  accordance  with  the  agreement  of  all  the 
parties  in  interest,  entered  into  for  the  protection  of  all  their 
interests.* 

§  602  ee.  It  may  be  stated  as  a  general  proposition,  that 
where  the  proceedings  are  so  irregular  that  a  sale  would  be 
nugatory  or  void,  equity  would  enjoin  it,  if  application  was 
made.°  If  the  trustee  or  creditor  acts  in  bad  faith,  or  exceeds 
his  power,  or  proceeds  in  an  irregular  or  oppressive  manner, 
equity  will  enjoin  the  sale.  This  must  be  the  rule,  for  the  rea- 
son that  if  a  debtor  knows  of  the  irregularity  or  of  the  fraud, 

^  Lamb  v.  Goodwin,  10  Ired.  Eq.  820;  Chowning  v.  Cox,  1  Rand.  306; 
3  Leigh,  654;  Beebe  v.  De  Baum,  3  Eng.  510;  Hall  v.  Harris,  1  Tex.  300; 
Gift  V.  Anderson,  5  Humph.  577;  Echols  v.  Dimik,  2  Stew.  144;  Green- 
leaf  r.  Queen,  1  Pet.  138;  Foster  v.  Gover,  5  Ala.  428. 

2  Chowning  v.  Cox,  3  Leigh,  654;  Cresop  v.  McLean.  5  Leigh,  391; 
Caldwell  V.  Chapline,  11  Leigh,  342. 

3  Hannah  v.  Carrington,  18  Ark.  85 ;  Foster  v.  Gover,  5  Ala.  428 ; 
Bayard  v.  Colefax,  4  Wash.  C.  C.  38;  Drake  v.  Moore,  18  Ala.  597; 
Franklin  v.  Greene,  2  Allen,  519. 

*  Pollock  V.  Keasley,  24  N.  J.  Eq.  94. 

*  York,  (fee,  Railw.  Co.  v.  Myers,  4  Me.  109 ;  Van  Berghen  v.  Demar- 
est,  4  John.  Ch.  37,  38;  Piatt  v.  McClure,  3  Wood.  &  Minot,  151; 
Matthie  v.  Edwards,  2  Coll.  465. 


§§  602  (?f?,  602  ee.]     when  a  sale  may  be  enjoined.         183 

and  stands  by  and  allows  the  proceedings  to  go  on,  he  may  be 
estopped  from  afterwards  taking  advantage  of  it.^  If  there  is 
a  dispute  or  doubt  concerning  the  title,  which  would  injure  the 
sale  of  the  property  and  greatly  reduce  the  price  of  it,  it  is  the 
duty  of  the  trustee  to  clear  up  the  title  before  the  sale,  and  equity 
will  enjoin  the  sale  until  it  is  done,  and  if  there  is  doubt  or  dis- 
pute as  to  how  much  is  due,  or  if  the  debt  is  unliquidated,  a  sale 
will  be  enjoined.  The  amount  of  the  debts  must  be  certain  ;2 
and,  if  it  is  not  so,  the  creditor  must  file  a  bill  to  ascertain  the 
amount,  and  pray  for  leave  to  sell  to'  pay  the  amount  found  due. 
And  it  is  said  that  equity  will  enjoin  a  sale  when  new  and 
further  litigation  would  l)e  prevented.^  So  when  the  whole 
debt  is  disputed,  as  for  usury  or  for  any  other  defence  to  the 
claim  made  in  good  faith.*  If,  however,  any  amount  is  ad- 
mitted to  be  due,  or  appears  to  the  court  to  be  due,  that  sum 
must  be  brought  into  court  or  tendered  to  the  creditor  before 
an  injunction  would  be  granted.^  Nor  would  the  court  grant 
an  injunction  in  order  that  different  debtors  might  settle  their 
individual  rights  among  themselves ;  the  sale,  must  be  made, 
and  they  can  settle  their  own  relations  among  themselves.^ 
And  equity  will  not  interfere  to  give  the  mortgagor  a  further 
time  to  pay  the  debt.'^ 

^  Doolittle  V.  Lewis,  7  John.  Ch.  45,  50;  Johnson  v.  AVilliam,  4  Min. 
260;  Johnson  u.  Henry,  10  John.  185,  186. 

2  Peek  V.  Peck,  9  Yerg.  301 ;  Cole  v.  Savage,  Clark  (N.  Y.)  361 ;  John- 
son V.  Eason,  3  Ired.  Eq.  330 ;  Wilkins  v.  Gordon,  10  Leigh,  547  ;  Ord  v. 
Noel,  5  Mad.  440;  Lane  v.  Tidball,  1  Gil.  (Va.)  130;  Gibson  v.  Jones,  5 
Leigh,  370 ;  Bassett  v.  Fisher,  11  Grat.  499 ;  Hunt  v.  Bass,  2  Dcv.  Eq. 
292 ;  James  v.  Gibbs,  1  Pat.  &  H.  277 ;  Miller  v.  Argyle,  5  Leigh.  460 ; 
Fisher  v.  Bassett,  9  Leigh,  119;  Guy  v.  Hancock,  1  Rand.  72  ;  Sandibrd 
V.  Flint,  24  Mich.  26. 

=»  Echliff  V.  Baldwin,  16  Ves.  267 ;  Curtis  r.  Buckingham,  3  Ves.  &  B. 
168.  ■•  Marks  v.  Morris,  3  Munf.  407. 

''  Sloan  V.  Coolhaugh,  10  lo.  30  ;  Stringham  v.  Brown,  7  lo.  33  ;  Casady 
V.  Hosier,  11  lo.  242. 

**  Brinckcrhoir  v.  Lansing,  4  John.  Ch.  65;  Cooper  r.  Stevens,  1  John. 
Ch.  425 ;  Gill  v.  Lyon,  1  John.  Ch.  447. 

'  Hyman  v.  Devereux,  63  N.  C.  624. 


184  TRUSTS  FOR  CREDITORS.         [CHAP.  XX. 

§  602^.  The  trust  of  the  creditor  under  his  deed  or  mort- 
gage, if  not  otherwise  expressed  in  the  deed,  is  to  sell  the 
property,  and  after  deducting  the  amount  of  his  debt  and  the 
expenses  of  the  sale,  to  pay  the  balance,  if  any,  to  the  debtor, 
his  heirs,  executors,  administrators,  or  assigns,  and  the  surplus 
must  be  paid  according  to  the  terms  of  the  trust.^  If  there  are 
subsequent  liens,  mortgages,  judgments,  or  assignments,  the 
creditor  must  pay  the  surplus  to  the  persons  holding  such 
liens  or  assignments,  in  the  order  in  which  they  attach  to  the 
property .2  No  subsequenflien  or  assignment  can  displace  a 
previous  lien,  and  although  a  debtor  can  assign  any  surplus 
that  may  be  coming  to  him,  yet  such  assignment  cannot  defeat 
a  prior  lien  on  the  property.^  To  entitle  a  judgment  creditor 
to  follow  or  claim  the  surplus,  he  must  have  made  his  judg- 
ment a  lien  on  the  property  or  upon  the  equity  of  redemption. 
If  there  are  no  liens  or  assignments  of  the  surplus  by  the 
debtor,  creditors  can  reach  the  surplus  in  the  mortgagor's 
hands  by  attachment,^  trustee  process,  or  garnishment,  or,  in 
some  cases,  by  a  creditor's  bill.  If  there  are  no  subsequent 
claims  upon  the  surplus  it  goes  to  the  debtor  ;  if  he  is  dead,  it 
goes  as  real  estate  to  his  heirs,  for  a  conversion  under  a  deed 
of  trust  or  mortgage  with  a  power  of  sale  extends  to  so  much 
only  as  is  necessary  to  pay  the  debt,  and  the  widow  is  entitled 
to  dower  in  the  surplus,  as  in  an  equity  of  redemption,  or  she 
is  entitled  to  dower  in  the  whole  estate  if  she  has  not  released 

'  Goulden  v.  Buckelew,  4  Cal.  107;  Pierce  v.  Robinson,  13  Cal.  116; 
Russell  V.  Dutlon,  4  Lans.  399. 

=>  Bodine  v.  Moore,  18  N.  Y.  347  ;  Calkins  v.  Isvell,  20  N.  Y.  152  ;  Bart- 
lett  V.  Gage,  4  Paige,  503 ;  Averill  v.  Loucks,  6  Barb.  470 ;  Eddy  v.  Smith, 
13  Wend.  488;  Waller  v.  Harris,  7  Paige,  167;  20  Wend.  555;  White  v. 
Watkins,  23  Mo.  429;  Doniphan  v.  Paxton,  19  Mo.  288;  Kennedy  t>.  Ham- 
mond, 16  Mo.  341 ;  Cook  v.  Dillon,  9  lo.  407  ;  Chase  v.  Parker,  14  lo.  207. 
Pahlman  v.  Shumway,  24  111.  127  ;  Presnell  v.  Landers,  5  Ired.  Eq.  251 ; 
Harrison  v.  Battle,  1  Dev.  Eq.  541  ;  Marlow  v.  Johnson,  31  Miss.  128 ; 
Palmer  v.  Yarborough,  1  Ired.  Eq.  310  ;  Russell  v.  Duflon,  4  Lans.  399. 

3  Doniphan  v.  Paxton,  19  Mo.  288 :  Palmer  v.  Yarborough,  1  Ired.  310. 

■•  Bailey  v.  Merritt,  7  Min.  159. 


§§  602/,  602^^.]  FORECLOSURE.  185 

it  by  joining  in  the  deed/  If  the  sale  is  made  under  a  second 
deed  of  trust  or  mortgage,  nothing  is  to  be  paid  to  the  prior 
mortgagee,  as  such  sale  does  not  affect  such  prior  lien,  but  it  cuts 
off  all  subsequent  mortgages,  liens,  judgments,  or  assignments ; 
therefore,  they  are  to  be  paid  as  before  stated.^  "Whether  the 
trustee  is  to  search  for  such  subsequent  liens  upon  the  prop- 
erty, or  whether  he  can  dispose  of  the  surplus  in  the  absence 
of  notice  of  subsequent  liens  with  safety  to  himself,  is  not 
entirely  settled,  but  it  would  appear  that  a  mortgagee  is  not 
compelled  to  search  the  record  for  liens  subsequent  to  the  date 
of  his  own  deed.^ 

§  602  gg.  These  powers  of  sale  in  mortgage-deeds  do  not 
change  their  character  as  mortgages,  but  the  powers  of  sale 
are  superadded  to  mortgages.  It  is  a  cumulative  power  of 
foreclosure  ;  and  if  the  mortgagee  does  not  choose  to  exercise 
the  power,  he  may  foreclose  the  mortgage  by  any  of  the  other 
methods  provided  by  law,*  and  the  power  need  not  be  coexten- 
sive with  the  mortgage  or  its  conditions ;  ^  and  so,  if  the  mort- 
gagee has  once  entered  to  foreclose,  he  may  afterwards  exercise 
the  power  of  sale.*^ 

1  Wright  V.  Rose,  2  Sim.  &  S.  323;  Moses  v.  Murgatroyd,  1  John.  Ch. 
119;  Tabele  v.  Tabele,  1  John.  Ch.  45;  Hinchman  v.  Stiles,  1  Stockt.  454. 
But  see  Pahlman  v.  Shumway,  24  111.  127,  and  see  Varnum  v.  Meserve,  8 
Allen ,  158,  where  the  mortgagor  had  died  leaving  a  will. 

2  Helmey  v.  Heitcamp,  20  Mo.  569 ;  Graham  v.  King,  15  Ala.  563. 
=•  Cook  V.  Dillon,  9  lo.  407. 

■*  Cornierais  v.  Genella,  22  Cal.  116;  Thompson  v.  Ilouze,  48  Miss. 
445  ;  Merriott  v.  Givens,  8  Ala.  694;  ^[orrison  v.  Bean,  15  Tex.  257. 

*  Butler  V.  Ladue,  12  Mich.  173 ;  Montgomery  v.  McEwen,  9  Min.  103. 
®  Montague  v.  Dawes,  12  Allen,  397. 


186  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 


CHAPTER   XXI. 

TRUSTEES   FOR   INFANTS. 

§  603.  The  special  care  of  courts  of  equity  over  infants. 

§  604.  Investments  for  infants. 
§§  605,  606.  Power  to  convert  an  infant's  personal  property  into  real  estate. 

§  607.  Conversion  in  oases  of  necessity. 

§  608.  Leases  of  infants'  lands. 

§  609.  Power  to  convert  real  estate  into  personal  property. 

§  610.  Powers  of  courts  of  equity  to  decree  a  conversion  of  an  infant's  property. 

§  611.  The  rights  of  an  infant  will  remain  the  same  whether  his  property  is  converted 
or  not. 

§  612.  Duty  of  a  father  to  maintain  his  infant  children,  —  dutj'  of  trustees  as  to  main- 
tenance. 

§  613.  Power  of  the  court  to  order  maintenance. 

§  614.  Will  direct  an  inquiry  as  to  the  ability  of  the  father  and  the  rank  and  circum- 
stances of  the  family. 

§  615.  In  what  manner  infants  are  to  be  maintained. 

§  616.  When  maintenance  will  not  be  decreed. 

§  617.  Proceedings  to  obtain  decrees  of  maintenance. 

§  618.  Trustees  must  not  expend  the  principal  of  an  infant's  estate  without  the  sanc- 
tion of  the  court. 

§  619.  Whether  the  court  can  authorize  the  expenditure  of  part  of  the  principal  of  an 
infant's  property. 

§  620.  Where  the  settlement  or  will  contains  directions  as  to  maintenance. 
§§  621.  An  infant  cestui  que  trust  has  the  same  rights  and  remedies  as  other  cestuis  que 
trust. 

§  622.  Trustees  for  infants  must  account.     When. 

§  623.  Infants  may  be  maintained  out  of  the  jurisdiction  of  the  court. 

§  624.  To  whom  a  trustee  may  pay  money  for  an  infant. 

§  603.  Infants  and  their  property  are,  in  an  especial  manner, 
under  the  protection  of  courts  of  equity.  The  court  has  an  in- 
herent jurisdiction,  which  extends  to  the  care  of  the  persons  of 
infants,  so  far  as  it  is  necessary  for  their  protection  and  educa- 
tion, and  also  of  their  property,  real  and  personal,  and  its  due 
management,  preservation,  and  proper  application  to  their  main- 
tenance.^    The  court  is  their  general  guardian,  and  upon  the 

1  Hope  V.  Hope,  4  De  G.,  M.  &  G.  328;  Dawson  v.  Jay,  3  De.  G.,  M.  & 
G.  764;  Stuart  v.  Bute,  9  H.  L.  Ca.  440;  Johnson  v.  Beattie,  10  CI.  &  Fin. 


§§  603-605.]       WARDS  OF  THE  COURT  —  INVESTMENTS.  187 

institution  of  proceedings  therein,  involving  their  personal  or 
pecuniary  rights,  they  are  regarded  as  wards  of  the  court,  and 
under  its  special  cognizance  and  protection,  and  no  act  can  be 
done  affecting  either  their  persons,  property,  or  condition,  except 
under  the  express  or  implied  direction  of  the  court  itself;  and 
every  thing  done  without  such  direction  is  treated  as  a  violation 
of  the  authoi'ity  of  the  court,  and  the  offending  party  is  deemed 
guilty  of  a  contempt,  and  treated  accordingly. ^ 

§  604.  In  England,  it  is  a  settled  rule  of  the  court  that  money 
in  trust  for  an  infant  must  be  laid  out  in  three  per  cent  consols  ; 
and  the  court  will  not  even  refer  it  to  a  master  to  inquire  whether 
it  would  be  for  the  benefit  of  the  infant  that  the  trustee  should 
invest  the  sum  in  real  or  any  other  security,  unless  there  is 
something  very  special  in  the  case  to  induce  the  court  to  relax 
the  rule.2  In  the  United  States,  there  is  no  such  general  rule, 
and  there  are  no  statutes  directing  how  trustees  shall  invest  the 
trust  funds ;  but  in  some  States  there  are  statutes  directing 
how  savings-banks  shall  invest  money  deposited  with  them,  and 
courts  have  sometimes  directed  trustees  to  invest  the  trust 
funds  in  those  securities  that  have  been  legalized  for  savings- 
banks. 

§  605.  In  England,  trustees  or  guardians  are  not  ordinarily 
permitted  to  change  the  nature  of  the  infant's  property,  by  con- 
verting personalty  into  realty,  or  vice  versa ;  ^  as,  where  the 

440;  Nugent  v.  Vetzera,  L.  R.  2  Eq.  704;  Spring  r.  Woodworth,  4  Allen, 
326 ;  Anderson  v.  Mather,  44  N.  Y.  229. 

'  Per  Nelson,  J.,  Williamson  v.  Berry,  8  How.  55.t  ;  2  Story,  Eq.  Juris. 
§§  1311,  1352,  1353;  Smith  v.  Smith,  3  Atk.  304;  Eyre  v.  Shaftesbury,  2 
P.Wms.  103;Gilb.  172;  2Eq.  Ca.  Ab.  710,  pi.  3  ;  755,  pi.  4;  3Lead.  Ca.Eq. 
638-610  ;  Aymar  v.  Roff,  3  John.  Ch.  49  ;  In  Matter  of  Whittaker,  4  John. 
Ch.  378 ;  Garr  v.  Drake,  2  John.  Ch.  542  ;  Van  Duzer  v.  Van  Duzer, 
6  Paige,  3(i(j ;  De  Manneville  v.  De  Manneville,  10  Ves.  62. 

2  Norbury  v.  Norbury,  4  Mod.  191. 

8  1  Mad.  Ch.  Pr.  269;  2  Story,  Eq.  Jur.  1357;  Ex  parte  Phillips,  19 


188  TEUSTEES  FOR  INFANTS.         [CHAP.  XXL. 

trustees  of  an  infant  had  saved  X3,000  out  of  the  profits  of  real 
estate,  and  laid  it  out  in  lands  adjoining  the  infant's  estate,  with 
the  consent  of  the  guardian,  and  the  infant  died  under  age,  the 
trustees  were  held  not  justified  in  making  such  an  investment, 
and  were  ordered  to  account  to  the  infant's  executors.^  Tlie 
rule  originated  in  the  fact  that  formerly  an  infant  at  seventeen 
might  make  a  will  of  personalty,  and  to  convert  his  personalty 
into  real  estate  took  away  a  power  that  the  law  gave  him ;  on 
the  other  hand,  to  convert  his  real  estate  into  personalty  gave 
him  a  power  contrary  to  the  policy  of  the  law.^  This  reason 
ceased  with  the  statute  of  wills,  which  takes  away  the  right  of 
infants  to  make  wills,  either  of  real  or  personal  estate,  before 
they  are  twenty-one.  Lord  Eldon  seemed  to  think,  that  the  rule 
was  established  for  the  protection  of  the  relative  interests  of  the 
real  and  personal  representatives  of  the  infant ;  ^  but  it  is  now 
established  that  the  court  will  not  regard  the  interests  of  an. 
infant's  representatives,  nor  interfere  to  protect  them,  but  will 
look  only  to  the  best  interest  of  the  infant.*  There  seems  now 
to  be  no  principle  at  the  bottom  of  the  rule,  and  therefore  it  has 
been  said  in  some  cases,  that  where  the  advantage  or  conven- 
ience of  the  infants  called  for  a  change  in  the  nature  of  the 
property,  the  court  would  order  it.^  In  other  and  later  cases,  the 
jurisdiction  and  power  of  the  court  to  change  the  nature  of  an 

Ves.  122  ;  Witter  v.  Witter,  3  P.  Wms.  101 ;  Rook  v.  Worth,  1  Yes.  461 ; 
Tullett  V.  Tullett,  Arab.  370. 

•  Winchelsea  v.  Norcliffe,  1  Vern.  341 ;  Gibson  v.  Scudmore,  1  Dick.  45. 

^  Ware  v.  Polhill,  11  Ves.  278;  Ex  parte  Phillips,  19  Ves.  122;  Ash- 
burton  V.  Ashburton,  6  Ves.  6;  Sergeson  v.  Sealey,  2  Atk.  413;  Rook  v. 
Worth,  1  Ves,  461  ;  Witter  v.  Witter,  3  P.  Wms.  99;  Inwood  v.  Twyne, 
2  Eden,  152;  Ex  parte  Bromfield,  1  Ves.  Jr.  461;  Pierson  v.  Shore,  1  Atk. 
480;  Ex  parte  Grimstone,  Amb.  708. 

3  Ware  v.  Polhill,  11  Ves.  278. 

*  Pierson  v.  Shore,  1  Atk.  480 ;  Oxenden  v.  Compton,  2  Ves.  Jr.  69 ;  4 
Bro.  Ch.  201 ;  Ex  parte  Grimstone,  Amb.  706 ;  4  Bro.  Ch.  235,  n. ;  In 
Matter  of  Salisbury,  3  John.  Ch.  347;  Lloyd  v.  Hart,  2  Barr,  477. 

'  Inwood  V.  Twyne,  Amb.  419 ;  2  Ed.  147 ;  Terry  v.  Terry,  Ch.  Pr. 
273. 


§§  605, 60G.]  CONVERSION.  189 

infant's  property  have  been  denied  ;  and  it  seems  now  to  be  the 
establislied  rule,  that  such  change  cannot  be  made  even  for  the 
advantage  of  the  infant.^ 

» 
§  606.  In  the  United  States,  a  guardian  or  trustee  cannot 
convert  an  infant's  personalty  into  real  estate.^  If  such  con- 
version is  made,  the  wards,  on  coming  of  age,  may  elect  to 
receive  their  personal  property,  and  the  trustee  or  guardian 
must  account  and  pay  it  over  to  them  ;  ^  or  they  may  acquiesce 
in  the  purchase  after  becoming  of  age,  and  if  they  so  acquiesce 
for  a  long  time,  they  cannot  afterwards  claim  the  money, 
although  the  original  conversion  into  real  estate  was  wrong- 
ful.'* So  to  use  any  part  of  the  ward's  personal  property,  in 
making  permanent  improvements  upon  his  real  estate,  is  a  con- 
version of  personalty  into  real  estate,  and  is  unauthorized,  and 
will  not  be  allowed  to  the  trustee  or  guardian."  Where  a  guar- 
dian used  his  own  money  in  constructing  buildings  upon  the 
ward's  land,  it  was  held  that  he  could  not  recover  the  money 
back  from  the  infant.^  But  where  the  enlargement  of  a  tene- 
ment upon  the  ward's  land  greatly  increased  the  rents,  the 
trustee  was  allowed  a  credit  for  the  expenditure.'^  In  one  case, 
it  was  referred  to  a  master  to  report  whether  it  was  for  the 
interest  of  the  infant  to  spend  money  in  repairs  upon  real  estate 

1  Taylor  v.  Phillips,  2  Ves.  23 ;  Simpson  v.  Jones,  2  R.  &  M.  365  ;  Cal- 
vert V.  Godfrey,  6  Bcav.  97 ;  Peto  v.  Gardner,  12  L.  J.  (n.  s.)  Ch.  371 ; 
2  Y.  &  C.  Ch.  312  ;  Garmstone  v.  Gaunt,  1  Coll.  577  ;  Anderson  v.  Mather, 
44  N.  Y.  249. 

^  Eckford  v.  De  Kay,  8  Paige,  89;  Rogers  r.  Paterson,  4  Paige,  109; 
Ex  parte  Crutchfield,  3  Yerg.  335;  Moore  v.  Moore,  12  B.  Mon.  190; 
Royer's  App.  11  Penn.  St.  36;  Bonsall's  App.  1  Rawle,  273;  Wolf  v. 
Eichelberger,  2  Penn.  34G. 

*  Eckford  r.  De  Kay,  8  Paige,  89  ;  Rogers  v.  Paterson,  4  Paigo,  109. 

*  Moore  v.  Moore,  12  B.  INIon.  190. 

^  Hassard  v.  Rowe,  11  Barb.  22;  Bellinger  r.  Shafcr,  2  Sand.  Ch.  297; 
Miller's  Estate,  1  Penn.  St.  320  ;  Ale.xander  v.  Alexander,  8  Ala.  796 ; 
Copely  V.  O'Neil,  39  How.  N.  Y.  41. 

'  Hassard  v.  Rowe,  11  Barb.  22. 

'  Miller's  Estate,  1  Penn.  St.  326. 


190  TRUSTEES   FOR   INFANTS.  [CHAP.  XXI. 

of  which  he  was  tenant  in  tail  in  expectancy ;  ^  and  in  another 
case  it  was  said,  that  an  allowance  for  permanent  improvements 
may  be  made  where  it  is  obviously  for  the  ward's  interest.^  But 
a  trustee  or  guardian  should  not  venture  to  expend  the  ward's 
personalty  in  that  manner  without  first  obtaining  the  sanction 
of  the  court ;  for  if  an  unauthorized  act  is  first  done,  the  court 
will  not  sanction  it,  though  in  the  particular  case  it  might  be 
proper  if  first  sanctioned  by  the  court ;  for  the  principle  is,  that 
trustees  and  guardians  of  infants  should  take  no  important  step 
without  leave  of  the  court,  and  the  court  will  punish  such  action 
taken  on  their  own  responsibility,  by  refusing  to  sanction  the 
expenditures.^ 

§  607.  It  is  said,  that,  in  case  of  necessity,  the  guardian  or 
trustee  may  purchase  land  with  the  personalty  of  an  infant.^ 
No  rules  can  be  laid  down  to  govern  the  conduct  of  the  guar- 
dian or  trustee  as  to  such  necessity,  and  the  safest  course  is  to 
apply  to  the  court  having  jurisdiction  of  the  ward's  estate.  In 
a  proceeding  to  divide  an  estate,  in  which  the  infant  owned  a 
third,  it  was  held  that  a  guardian  might  purchase  the  interest 
of  other  heirs  to  prevent  a  sacrifice  of  the  estate  and  the  ward's 
property.^  A  guardian  may  relieve  his  ward's  real  estate  from 
an  elegit,  extent,  mortgage,  or  lien,  which,  if  left  unredeemed, 
would  probably  destroy  the  ward's  interest.^  If  a  guardian  pur- 
chases real  estate  for  his  ward,  he  cannot  convey  it  again  with- 
out the  leave  and  sanction  of  the  court ;  as  where  a  guardian 
purchased  real  estate  in  trust  for  his  wards,  and  upon  their 

>  Hood  V.  Bridport,  11  Eng.  L.  &  Eq.  271. 

*  Jackson  v.  Jackson,  1  Grat.  143. 

8  AVorth  V.  Curtis,  3  Shep.  228;  Miller's  Estate,  1  Penn.  St.  326; 
Mason  v.  Wait,  4  Scam.  127. 

*  BonsalPs  App.  1  Rawle,  273 ;  Royer's  App.  11  Penn.  St.  36 ;  Billing- 
ton's  App.  3  Rawle,  65. 

*  Bowman's  App.  3  Watts,  369.  This  was  held  not  to  be  a  conversion 
of  personalty  into  real  estate,  but  simply  the  expenditure  of  such  money  as 
was  necessary  to  preserve  the  estate. 

»  Ronald  v.  Buckley,  1  Brock.  356. 


§§  606-610.]  SALE   OF    REAL    ESTATE.  191 

marriage  he  conveyed  it  to  their  husbands,  the  fee  was  held  to 
be  still  in  the  wards. ^ 

§  608.  There  can  be  no  doubt,  that  it  is  the  duty  of  the 
trustees  or  guardians  of  infants  to  lease  the  lands  of  their 
wards,  as  the  wards  are  incapable  of  acting  for  themselves  ; 
and  they  must  collect  the  rents  and  account  for  them :  ^  but 
they  cannot  execute  leases  extending  beyond  the  majority  of 
the  infants ;  if  they  do,  the  infants,  on  coming  of  age,  can  dis- 
affirm the  lease  and  take  the  possession. ^ 

§  609.  Reference  thus  far  has  been  made  only  to  the  power 
of  trustees  or  guardians  to  convert  their  ward's  personalty  into 
real  estate,  for  the  reason,  that  under  no  circumstances  can  a 
trustee  or  guardian  of  an  infant  convert  the  ward's  real  estate 
into  personalty  by  a  sale,  without  the  order,  decree,  or  license 
of  a  court.  If  such  sale  is  already  made,  and  an  application  is 
made  to  have  it  sanctioned,  the  court  will  refuse.* 

§  610.  Whether  a  court  of  general  equity  powers  has  an 
inherent  jurisdiction,  without  some  enabling  statute,  to  decree 
a  conversion  of  an  infant's  property,  is  a  matter  of  doubt  and 
much  conflict  of  opinion.  The  jurisdiction  to  decree  such  con- 
version has  been  sustained  in  some  cases,^  and  denied  in  others.*" 

^  Kauffman  v.  Crawford,  9  Watts  &  Ser.  131 ;  Robinson  v.  Robinson, 
22  Iowa,  427. 

"  Field  V.  Schieffelin,  7  John.  Ch.  150;  Byrne  v.  Van  Ilocsen,  5  John. 
66  ;  Ross  v.  GiU.  4  Call,  250;  Genet  v.  Talmadge,  1  John.  Ch.  561 ;  Emer- 
son V.  Spicer,  55  Barb.  428. 

'  Ross  V.  Gill,  4  Call,  250;  Emerson  v.  Spicer,  55  Barb.  428. 

*  Worth  V.  Curtis,  3  Shep.  228;  Miller's  Estate,  1  Penn.  St.  326  ;  Mason 
t;.  Wait,  4  Scam.  127. 

*  Williams's  Case,  3  Bland,  186  ;  Ex  parte  Jcwett,  16  Ala.  409  ;  Troy  r. 
Troy,  1  Busb.  Eq.  87;  Williams  v.  Harrington,  11  Mod.  616;  Huger  v. 
Huger,  3  Des.  18;  Stapleton  v.  Langstaff,  3  Des.  22;  Matter  of  Salisbury, 
3  John.  Ch.  347  ;  Wood  v.  Mather,  38  Barb.  673. 

*  In  Baker  v.  Lorillard,  4  Comst.  257,  the  court  said  that  it  had  no 


192  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

The  reasoning  of  the  cases  wliere  the  jurisdiction  is  denied  is, 
that  where  statutes  have  been  enacted,  giving  power  to  surro- 
gates or  probate  courts  to  authorize  the  sale  of  lands  belonging 
to  infants  and  minors  by  their  guardians,  trustees,  or  other 
persons,  such  statutes  are  to  be  followed  ;  that  they  give  an 
exclusive  jurisdiction,  and  prescribe  all  the  rules  of  the  sale, 
and  enact  what  securities  shall  be  taken  for  the  protection  of 
the  ward ;  and  that  courts  of  equity  can  have  no  jurisdiction 
where  such  formal  proceedings  and  such  adequate  remedies 
are  given  by  statute.  Nearly  all  the  States  have  statutes  giving 
guardians,  or  other  persons  appointed  by  the  court,  power  to 
sell  the  real  estate  of  infants,  on  applying  in  due  form,  and 
showing  that  it  will  be  advantageous  to  the  infant  to  convert 
his  real  estate  into  some  other  kind  of  property.  The  authority 
or  license,  given  by  the  court  to  the  guardian,  trustee,  or  other 
person  who  may  be  appointed  to  sell  and  convey  the  estate, 
confers  upon  them  the  same  power  that  is  given  to  executors 
and  administrators  to  sell  the  real  estate  of  a  deceased  person 
for  payment  of  debts. ^     Legislatures,  in  the  absence  of  general 

jurisdiction  to  order  a  sale  of  an  infant's  real  estate,  except  by  the  statute 
giving  it  that  power.  Rogers  v.  Dill,  6  Hill,  415,  decided  that  a  title  taken 
under  a  decree  of  sale  by  a  court  of  equity,  contrary  to  the  testator's  will, 
was  bad.  Forman  v.  Marsh,  1  Kern.  547,  was  the  exercise  of  the  jurisdic- 
tion under  the  statute.  Nelson,  J.,  denied  the  jurisdiction  in  Williamson 
V.  Berry,  8  How.  531 ;  3  Lead.  Ca.  in  Eq.  269  (3d  Amer.  ed.).  In  Ander- 
son V.  Mather,  44  N.  Y.  249,  it  was  held  that  chancery  has  an  inherent 
power  over  an  infant's  lands,  held  in  trust,  not  derived  from  the  statute, 
that  the  statute  relates  to  lands  owned  in  fee  by  the  infant,  and  not  to  his 
equitable  estates,  and  that  the  prohibitions  of  the  statute  are  restrictions 
upon  trustees,  and  not  limitations  upon  the  power  of  courts. 

'  Field  V.  Schieffelin,  7  John.  Ch.  150 ;  Bank  of  Va.  v.  Clegg,  6  Leigh, 
399;  Garland  v.  Loring,  6  Rand.  396;  Matter  of  Wilson,  2  Paige.  412; 
Pope  V.  Jackson,  11  Pick.  113 ;  Talley  v.  Starke,  6  Grat.  339 ;  Duckett  i-. 
Skinner,  11  Ired.  431  ;  Brown's  Case,  8  Humph.  200;  Peyton  v.  Alcorn,  7 
J.  J.  Marsh.  500;  Dow's  Pet.  Walk.  Ch.  145  ;  Young  v.  Keogh,  11  111.  642; 
Harding  v.  Larned,  4  Allen.  426;  Dalrymple  v.  Taneyhill,  4  Md.  Ch.  171; 
Joor  r.  Williams,  9  George,  546;  Ex  parte  Jewett,  16  Ala.  409;  Morris  v. 
Morris,  2  McCarter,  239;  Beal  v.  Harman,  38  Mo.  435;  Wood  v.  Mather, 
38  Barb.  473. 


§  610.]  SALE  OF  REAL  ESTATE.  193 

statutes  authorizing  courts  to  act,  may  authorize  the  sale  and 
conversion  of  an  infant's  real  estate,  and  such  legislation  in 
particular   cases,   or    generally   in    enabling   courts   to   grant 
authority,  is  constitutional.^     In  addition   to   these   statutes, 
there  are  statutes  in  several  of  the  States  authorizing  trustees 
to  apply  to  the  court  by  petition  or  bill,  for  license  to  sell  real 
estate  held  in  trust,  whether  for  infants  or  adults,  although 
there  may  be  interests  that  may  devolve  upon  persons  not  yet 
in  being.     The  statutes  authorize  the  courts  to  appoint  some 
one  to  appear  for  and  represent  minors  and  persons  not  in 
being ;  and  if,  upon  the  hearing  of  all  parties  interested,  it 
appears  to  be  for  the  interest  of  all  that  the  real  estate  should 
be  sold,  a  sale  is  decreed,  and  the  trustees  are  ordered  to  invest 
the  proceeds  in  safe  securities  upon  the  same  trusts.^     If,  how- 
ever, there  is  any  particular  privilege  conferred  upon  an  infant, 
of  which  he  would  be  deprived  by  a  sale  of  the  estate,  a  sale 
will  be  denied  ;  as  where  a  testator  gave  his  mansion-house  and 
farm  to  a  son  for  life,  and  his  mansion-house  and  a  portion  of 
his  farm  to  such  one  of  his  grandsons,  by  this  or  anotiier  son, 
in  remainder  as  should  elect  the  mansion-house  and  land  as  his 
share.     Upon  a  petition  setting  forth  that  it  was  for  the  inter- 
est of  all  parties  that  the  estate  should  be  sold,  the  court  held 
that  it  was  a  specific  devise  to  such  grandson  in  remainder,  as 
should  elect  to  take  the  mansion-house ;  that  to  decree  a  sale 
would  defeat  the  intention  of  the  testator  ;  that  if  the  mansion- 
house  was  going  to  decay  and  the  income  was  insulTicient  to 
repair  it,  so  that  the  devise  over  would  be  substantially  defeated, 
a  sale  might  be  ordered,  but,  no  such  case  appearing,  a  sale 
was  denied.^    If,  however,  a  power  of  conversion  is  given  in 

>  Snowhill  V.  Snowhill,  2  Green,  Ch.  20;  Norris  v.  Clymer,  2  Barr,  277; 
Davis  t'.  Joliannot,  7  Met.  388;  Spotswood  «;  Pendleton,  4  Call,  oH;  Dor- 
sey  V.  Gilbert,  11  G.  (&  J.  87;  Powers  v.  Bergen,  2  Seld.  3o8 ;  Nelson  v. 
Lee,  10  B.  Men.  495 ;  In  Matter  of  Bull,  45  Barb.  524. 

*  Stat.  Mass.  1864,  Ch.  168.  It  has  been  said,  however,  that  the  court 
ought  to  retain  the  title  to  the  land,  for  security  of  the  purchase-money. 

'  Davis's  Pet.  14  Allen,  24.     In  Rogers  v.  Dill,  6  Hill,  415,  the  court 

VOL.  II.  13 


194  TRUSTEES  FOR  INFANTS.         [CHAP.  XXI. 

the  instrument  of  trust,  the  trustee  may  exercise  all  the  pow- 
ers of  conversion  given  him.^  In  such  cases,  the  trustee  for  an 
infant  may  exercise  even  larger  powers  than  a  trustee  for  a 
person  sui  generis  ;  for  such  person's  signature  to  receipts  may 
be  required,-  but  as  an  infant  can  do  no  valid  act,  a  trustee  for 
sale  of  his  property  takes  by  implication  the  power  to  sign 
receipts  and  receive  the  purchase-money.^ 

§  611.  If  an  infant's  lands  are  sold  by  order  of  tlie  court 
the  proceeds  remain  real  estate,  so  far  as  the  guardian  and 
infant  are  concerned,  until  he  is  of  age  ;^  but  if  he  dies  after 
coming  of  age  the  proceeds  are  treated  as  personalty.^  Timber 
cut  upon  an  infant's  estate,  and  the  proceeds  and  the  accumu- 
lation of  the  proceeds,  remain  real  estate,  if  the  infant  is  tenant 
in  fee ;  ^  but  if  he  is  tenant  in  tail,  they  are  considered  person- 
alty, to  prevent  them  from  going  to  the  remainder-man."  If  an 
infant's  personal  property  is  used  to  pay  off  incumbrances  on 
the  estate,  it  is  still  looked  upon  as  part  of  the  personalty.^ 

•went  further,  and  declared  that  a  purchaser,  under  a  decree  of  sale  that 
ought  not  to  have  been  made  by  the  court,  took  no  title.  See  Matter  of 
Heaton,  21  N.  J.  221. 

^  Ashburton  v.  Ashburton,  6  Ves.  6 ;  Terry  v.  Terry,  Pr.  Ch.  273 ; 
Rogers  v.  Dill,  6  Hill,  415. 

«  2  Sugd.  V.  &  P.  45. 

^  Lavender  v.  Stanton,  2  Mad.  46;  Sowarsby  v.  Lacy,  4  Mad.  142; 
Breedon  v.  Breedon,  1  R.  &  M.  413. 

*  Genet  v.  Talmadge,  1  John.  Ch.  564;  Snowhill  v.  Snowhill,  2  Green, 
Ch.  20 ;  Lloyd  v.  Hart,  2  Penn.  St.  473 ;  March  v.  Berrier,  6  Ired.  Eq. 
524 ;  Shumway  v.  Cooper,  16  Barb.  556 ;  Sweezy  v.  Thayer,  1  Duer,  286 ; 
Forman  v.  Marsh,  1  Ker.  544 ;  Fidler  v.  Higgins,  21  N.  J.  Eq.  138. 

«  Snowhill  V.  Snowhill,  2  Green,  Ch.  20. 

8  Tullet  V.  TuUet,  1  Dick.  352 ;  Amb.  370 ;  Mason  v.  Mason,  cited  Amb. 
371;  Ex  j^arte  Phillips,  19  Ves.  124;  Rook  v.  Worth,  1  Ves.  461;  Ex 
parte  Broomfield,  1  Bro.  Ch.  516. 

"•  Ibid. ;  Dyer  v.  Dyer,  94  Beav.  304. 

»  Ibid. ;  Seys  v.  Price,  9  Mod.  220;  Dowling  r.Belton,  1  Flan.  &  Kelly, 
462  ;  2  Freem.  114,  126  ;  Ex  parte  Grimstone,  Amb.  708  ;  Palmes  v.  Danby, 
Pr.  Ch.  137  ;  Zoach  v.  Lloyd,  cited  Awdleyr.  Awdley,  2  Vern.  192;  Dennis 
V.  Badd,  see  Winchelsea  v.  Norclilfe,  1  Vern.  436 ;  Mason  v.  Dry,  Pr.  Ch. 
319 ;  Pierson  v.  Shore,  1  Atk.  480. 


§§  610-612.]  SALE  OF  infant's  lands.  195 

But  necessary  expenses  for  keeping  up  the  estate,  as  ordinary 
repairs,  are  thrown  upon  the  personalty ;  ^  and  so  where  an 
estate  was  devised  to  an  infant,  in  consideration  of  his  paying 
off  the  original  cost,  such  payment  was  held  to  be  a  necessary 
expense  and  to  fall  upon  the  personalty .^  Generally,  the  pro- 
ceeds of  an  estate,  as  timber,  go  with  the  estate ;  ^  but  in  a  late 
case,  an  infant  dying  under  age,  the  proceeds  of  timber  cut 
during  his  life  was  held  to  be  personalty.*  These  distinctions 
are  quite  immaterial  in  the  United  States,  as  in  most  of  them, 
if  not  all,  both  real  and  personal  estate  descends  to  the  same 
persons  as  heirs,  and  both  real  and  personal  estates  are  equally 
liable  for  debts. 

§  612.  A  father  is  bound  to  maintain  his  infant  children,  if 
he  has  sufficient  ability  ;  therefore  a  trustee  cannot  apply  any 
part  of  the  income  of  an  infant's  estate  to  its  maintenance  ^ 
without  an  order  of  court.^  If  the  father  has  the  means  to 
maintain  his  children,  the  trustee  cannot  apply  income  to  their 
support,  although  there  is  a  provision  for  their  maintenance  in 
the  instrument  of  trust."     But  if  there  is  an  agreement  in  a 

'  Ex  parte  Grimstone,  cited  Oxenden  v.  Compton,  4  Bro.  Ch.  235,  n.  ; 
Amb.  708. 

-  Yernon  v.  Vernon,  cited  Ex  parte  Brorafield,  1  Ves.  Jr.  456. 

8  Field  V.  Brown,  27  Beav.  90. 

*  D)er  V.  Dyer,  34  Beav.  504, 

^  Fawkner  v.  Watts,  1  Atk.  408 ;  Jackson  v.  Jackson,  1  Atk.  513  ;  But- 
ler V.  Butler,  3  Atk.  60;  Darley  v.  Darley,  3  Atk.  399  ;  Stocken  v.  Stocken, 
4  My.  &  Cr.  98;  Cruger  v.  Heyward,  2  Des.  94;  Matter  of  Kane,  2  Barb. 
Ch.  375;  Bethea  v.  McOoll,  5  Ala.  312;  Sparhawk  v.  Biiell,  9  Vt.  41 ; 
Walker  v.  Crowder,  2  Ired.  Eq.  478 ;  Chaplin  v.  Moore,  7  Mon.  173  ;  Du- 
pont  V.  Johnson,  1  Bail.  Eq.  279  ;  Myers  v.  Myers,  2  McCord,  Ch.  214. 

«  McKhight  V.  Walsh,  23  N.  J.  Eq.  136. 

">  Mundy  v.  Howe,  4  Bro.  Ch.  224  ;  Hughes  v.  Hughes,  1  Bro.  Ch.  387  ; 
Andrews  v.  Partington,  3  Bro.  Ch.  60;  2  Cox,  223;  Ilamle}-  v.  Gilbert, 
Jac.  354;  Thompson  v.  (iriilin,  1  Cr.  &  Ph.  317.  To  apply  the  income  of 
an  infant's  property  in  the  hands  of  a  trustee  to  the  maintenance  of  the 
infant  is  to  convert  it  into  a  gift  to  the  father,  which  the  donor  does  not 
generally  intend.  Addison  v.  Bowie,  2  Bland,  606;  Spear  v.  Spear,  9 
Rich.  Eq.  188.  j 


196  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

marriage  settlement,  that  the  father  shall  have  maintenance 
out  of  the  trust  property,  the  trustee  must  apply  the  income  to 
the  support  of  the  children,  without  reference  to  the  father's 
ability  to  support  them.^  If,  however,  the  trustees  have  a  dis- 
cretionary power  in  that  respect,  the  father  cannot  compel 
them  to  exercise  it  in  his  favor  ;2  nor  will  the  court  interfere 
if  they  choose  to  exercise  their  discretion .^  But  where  the  in- 
come is  expressly  given  to  the  father  for  the  maintenance  of 
his  children,  these  rules  do  not  apply ;  for  such  gift  is  in  some 
sort  a  gift  to  the  father,"^  If  income  is  directed  to  be  paid 
to  a  parent  "  for  "  or  "  towards  "  the  maintenance  of  children, 
and,  in  case  of  their  death  under  twenty-one,  the  share  of  each 
with  all  accumulations  is  to  go  to  the  survivors,  the  father  hav- 
ing maintained  the  children  is  entitled  to  the  income  without 
an  account.^  Where  the  income  of  a  life-estate  under  a  mar- 
riage settlement  was  given  to  parents  for  the  support  of  their 
children,  and  they  became  bankrupt,  the  court  ordered  the 
whole  income  to  be  applied  to  the  support  of  the  children.^ 
But  where  there  is  a  provision  to  parents  for  the  maintenance 
of  their  children,  and  a  third  person  voluntarily  supports  one 
of  the  children,  the  parents  being  ready  to  render  such  support, 
they  cannot  be  called  upon  to  reimburse  such  third  person,  nor 
can  the  fund  be  charged.^  Where  a  testatrix  devised  her  prop- 
erty, in  trust  to  apply  the  income  to  the  maintenance  of  the 
children  of  her  daughter  M.,  who  at  that  time  had  four  chil- 

'  Mundy  v.  Howe,  4  Bro.  Ch.  224;  Meachey  v.  Young,  2  My.  &  K.  490  ; 
Stocken  v.  Stocken,  4  My.  &  Cr.  95 ;  4  Sim.  152 ;  Stephens  v.  Lawry,  2 
N.  C.  C.  87  ;  White  v.  Grane,  18  Beav.  571 ;  Ransome  v.  Burgess,  L.  R.  3 
Eq.  773. 

2  Thompson  v.  Griffin,  Cr.  &  Ph.  322. 

3  Brophy  v.  Bellamy,  L.  R.  8  Ch.  798. 

*  Brown  v.  Casamajor,  4  Ves.  498  ;  Hammond  v.  Neame,  1  Swanst.  35; 
Byrne  v.  Blackburn,  26  Beav.  41. 

'"  Browne  v.  Paull,  1  Sim.  (n.  9.)  92 ;  15  Jur.  5 ;  Hadow  v.  Hadow,  9 
Sim.  438 ;  Rainsford  v.  Rainsford,  Rice,  Eq.  343. 

6  Dalton's  Settlement,  1  De  G.,  M.  &  G.  265. 

'  Crawford  v.  Patterson,  11  Grat.  364. 


§§  612,  613.]  MAINTENANCE    FROM   INCOME.  197 

dren,  and  who  afterwards  married  again  and  liad  five  other 
children,  it  was  held  that  the  maintenance  must  be  applied  to 
the  support  of  all  the  children,  and  that  it  commenced  with 
their  birtli,  and  continued  during  their  minority,  or  until  the 
females  were  married.^  If  the  trustee  has  a  discretion,  he  can- 
not apply  the  whole  income,  if  the  infant  can  be  properly 
maintained  on  a  less  sum.^ 

§  613.  A  stepfather  is  not  compelled  to  maintain  his  wife's 
children,  and  he  will  be  entitled  to  receive  maintenance  out  of 
the  income,  if  the  trustee  can  pay  it  for  that  purpose ;  ^  but 
if  the  support  of  the  infant  costs  the  stepfather  nothing,  though 
the  ward  lives  with  him,  he  will  not  be  allowed  any  thing.^  So 
a  mother  is  not  legally  obliged  to  support  her  children,  whether 
she  is  living  with  the  husband  by  whom  she  had  the  children, 
or  is  a  widow,  or  is  married  to  a  second  husband  ;  therefore 
she  is  entitled  to  maintenance  out  of  the  income  of  the  trust 
fund.^  If  a  father  makes  application  for  maintenance  out  of 
the  income  of  his  children  in  the  hands  of  trustees,  it  will  be 
referred  to  a  master  to  inquire  and  report  respecting  the 
father's  ability  to  support  them.^  But  no  inquiry  is  made  when 
the  mother  makes  application  for  maintenance,  as  her  ability 
is  immaterial,  she  not  being  obliged  to  maintain  her  children." 

1  Connor  v.  Ogle,  4  Md.  Ch.  425. 

2  McKnight  V.  Walsh,  24  N.  J.  Eq.  498. 

*  Freto  V.  Brown,  4  Mass.  675;  Gay  v.  Ballon,  4  Wend.  403. 

''  Booth  V.  Sineath,  2  Strob.  Eq.  31. 

^  Ilalev  V.  Bannister,  4  Mod.  275  ;  Hodgson  v.  Hodgson,  4  CI.  &  Fin. 
323  ;  11  Bligh  (x.  s.),  62  ;  LI.  &  Goo.  Sugd.  259  ;  LI.  &  Goo.  Plunk.  137  ; 
Lanoy  v.  Athol,  2  Atk.  447 ;  Ex  parte  Petre,  7  Ves.  403  ;  Beasley  v.  ]\Ia- 
grath,  2  Sch.  &  L.  35 ;  Greenwell  v.  Greenwell,  5  Ves.  194  ;  Douglas  v. 
Andrews,  12  Beav.  310  ;  Ht-yward  v.  Cuthbert,  4  Des.  445 ;  Matter  of 
Bostwiok,  4  Jolui.  Ch.  100;  Whijjple  v.  Dow,  2  Mass.  415;  Dawos  v.  How- 
ard, 4  Mass.  97  ;  Bruin  v.  Knott,  1  Phil.  573  ;  Anderton  v.  Yates,  5  De  G. 
&  Sm.  202;  Smee  v.  Martin,  1  Bunb.  131. 

^  Hughes  V.  Hughes,  1  Bro.  Ch.  386  ;  Lucknow  v.  Brown,  12  Jur.  1017; 
McKnight  v.  Walsh,  23  N.  J.  Eq.  136. 

^  Billingsley  v.  Critchett,  1  Bro.  Ch.  268  ;  Douglass  v.  Andrews,  12 
Beav.  311,  n. 


198  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

If  the  fact  of  the  poverty  of  the  father  is  apparent,  the  court 
will  not  send  the  matter  for  inquirj,i  nor  if  the  property  is 
small,2  or  no  allowance  is  asked  for.^  If  the  children  are 
taken  from  the  custody  of  a  father  on  account  of  his  miscon- 
duct, the  court  must  order  maintenance  for  them  out  of  the 
income  in  the  hands  of  trustees,  as  there  is  no  principle  upon 
which  a  court  can  take  children  from  a  father,  and  then  order 
him  to  support  them  from  his  own  means,  in  a  manner  dictated 
by  the  court.^ 

§  614.  In  inquiring  into  the  ability  of  a  father  to  support 
his  children,  no  account  will  be  made  of  the  fortune  of  his  wife 
settled  to  her  own  use,  as  the  property  of  the  wife  is  in  no  way 
bound  for  the  maintenance  of  the  children.^  In  making  the 
inquiry,  reference  will  be  had  to  the  position  of  the  children  in 
society,  their  expectations,  and  the  relative  style  and  expense 
in  which  they  ought  to  live ;  as  where  a  father  had  £6,000  per 
year,  maintenance  was  allowed  to  enable  him  to  educate  his 
children  properly  for  the  position  which  they  would  probably 
fill.^  In  all  these  matters,  the  best  interests  of  the  children 
are  consulted,  rather  than  mere  pecuniary  considerations  ; '''  as 
where  two  infant  daughters  were  entitled  to  a  large  fortune  on 
coming  of  age,  and  had  an  income  of  81,000  per  year,  their 
father  not  being  able  to  keep  a  house  in  accordance  with  their 
expectations  and  future  prospects,  an  allowance  of  $2,500  per 
year  was  made  to  him,  that  he  might  keep  up  an  establishment 
proper  for  his  daughters,  and  educate  them  at  home,  although 

1  Ex  parte  Mountford,  15  Yes.  449;  In  re  England,  1  R.  «&  M.  499; 
Payne  v.  Low,  1  R.  &  M.  223. 

'  Walker  v.  Shore,  15  Ves.  122  ;  Ex  parte  Swift.  1  R.  &  M.  575  ;  Payne 
V.  Low,  1  R.  &  M.  223;  Ex  paHe  Dudley,  1  J.  &,  W.  254,  n. 

^  In  re  Neale,  15  Beav.  250. 

*  Wellesley  v.  Beaufort,  2  Russ.  29.  ^  Ante,  §  613. 

^  Jervoise  v.  Silk,  1  Geo.  Cooper,  52  ;  Ex  parte  Williams,  2  Coll.  740 ; 
Moulton  V.  De  APCarty,  6  Rob.  N.  Y.  533. 

■^  Ex  parte  Burke,  4  Sand.  Ch.  617;  Owens  v.  Walker,  2  Strob.  Eq. 
289.     But  see  McKnight  v.  Walsh,  23  N.  J.  Eq.  136. 


§§  613-615.]  MAINTENANCE    FROM    INCOME.  199 

the  expense  of  sending  them  to  a  boarding-school  would  not 
have  l)een  more  tiian  $1,200  per  year. ^  Such  an  allowance  will 
be  made,  that  the  wards  may  have  the  means  of  bestowing 
charity,  where  the  fortune  is  ample,  and  such  an  expenditure 
rcasonable.2  Regard  will  be  had  to  all  the  circumstances  of 
the  family,  as  where  there  were  a  large  number  of  young  chil- 
dren, and  all  were  destitute,  a  liberal  allowance  was  made  for 
the  maintenance  of  an  older  boy,  in  order  that  the  younger 
children  might  be  better  maintained  and  educated.^  So  a 
liberal  maintenance  will  be  allowed  to  relieve  the  distress  of 
the  parents,^  even  where  the  indigence  arises  from  their  own 
misconduct.^ 

§  615.  Upon  these  principles,  courts  will  order  maintenance 
for  infants  out  of  their  income,  where  the  father  is  unable  to 
support  them.  This  inability  does  not  mean  absolute  poverty, 
but  an  inability  to  give  the  child  an  education  suitable  to  his 
fortune  and  expectations.*^  The  allowance  will  be  made, 
although  the  settlement  contains  no  direction  for  maintenance, 
and  although  there  is  a  direction  to  accumulate  the  income.'^ 
Generally,  application  should  be  made  to  the  court  for  leave  to 
apply  the  income  in  that  way,  but  the  trustees  ma}''  apply  the 
income  for  maintenance  without  an  express  decree,  taking  the 

'  Ibid. 

^  Langton  v.  Braokenburgh,  2  Coll.  44G. 

2  Pierpont  v.  Cheney,  1  P.  Wms.  493;  Harvey  v.  Harvey,  2  P.  Wins. 
22;  Laiioy  v.  Atliol,  2  Atk.  447;  Ex  parte  Petre,  7  Ves.  403;  Tweddell  v. 
Tweddell,  T.  &  R.  13 ;  Ex  parte  Williams,  2  Coll.  740  ;  Petre  v.  Petre,  3 
Atk.  .511;  Bradshaw  v.  Bradshaw,  1  J.  &  W.  647. 

*  Roach  V.  Gavan,  1  Ves.  IGO ;  Hill  v.  Chapman,  2  Bro.  Ch.  231;  Hey- 
sham  V.  Heysham,  1  Cox,  179. 

6  Allen  V.  Coster,  1  Beav.  202. 

*  Buckworth  v.  Buckworth,  1  Cox,  80  ;  Jervoise  v.  Silk,  Coop.  52 ;  [Mat- 
ter of  Burke,  4  Sand.  Ch.  G17;  Rice  v.  Tonnele,  4  Sand.  Ch.  568;  Hey- 
ward  V.  Cuthbert,  4  Des.  445;  Wilkes  v.  Rogers,  6  John.  566 ;  McKnight 
V.  Walsh,  24  N.  J.  Eq.  498. 

'  Ibid.  ;  Greenwell  f .  Greenwcll,  5  Yes.  194,  195,  n. ;  197,  n.;  Evans  v. 
Massey,  1  Y.  &  J.  196 ;  Stretch  v.  Watkins,  1  Mad.  253. 


200  TRUSTEES  FOR  INFANTS.         [CHAP.  XXI. 

risk  of  having  it  disallowed  by  the  court. ^  There  is  a  differ- 
ence between  past  expenses,  and  an  allowance  for  future  main- 
tenance. If  a  trustee  takes  the  risk  of  supporting  the  infant, 
he  will  be  allowed  only  for  actual  expenses  ;  ^  but  if  an  applica- 
tion is  made  for  future  maintenance,  a  liberal  allowance  is 
made  according  to  the  circumstances  of  the  case.^  And  the 
court  has  power  to  order  trustees  to  anticipate  the  time  of 
payment  upon  a  case  made  showing  the  necessity  of  mainten- 
ance.* In  England,  a  father  cannot  have  an  allowance  for 
past  expenses,  except  under  peculiar  circumstances.^  And  the 
court  may  disallow  all  the  payments  for  maintenance,  if  they 
were  made  improperly  and  without  leave  first  obtained.^  If, 
however,  the  circumstances  are  such  that  the  court  would  have 
made  the  allowance  if  asked,  they  will  be  allowed."  If  the 
annual  amount  to  be  paid  for  the  infant's  support  is  named  in 
the  instrument  of  trust,  the  trustee  of  his  own  motion  cannot 
exceed  that  amount,^  unless  he  is  clothed  with  a  discretion  ;  ^ 
but  if  the  fund  goes  absolutely  to  the  infant,  the  court  can  in- 
crease the  amount  if  the  circumstances  require  it.^*^     If  the 

'  Rice  V.  Tonnele,  4  Sand.  Ch.  568;  Bethea  v.  McColl,  5  Ala.  312 ;  Cor- 
bin  V.  Wilson,  2  Ash.  178 ;  Newport  v.  Cook,  2  Ash.  337. 

*  Bruin  v.  Knott,  1  Phil.  572,  overruling  12  Sim.  436;  Ex  parte  Bond, 
2  My.  &  K.  439  ;  Stephens  v.  Lawry,  2  Y.  &  Col.  Ch.  87;  Corbin  y.  Wilson, 
2  Ash.  178 ;  Newport  v.  Cook,  2  Ash.  337 ;  Matter  of  Bostwick,  4  John. 
Ch.  100. 

*  Ibid. 

■•  Rhoades  r.  Rhoades,  43  111.  239. 

^  Reeves  v.  Bryraer,  6  Ves.  425 ;  Sherwood  v.  Smith,  6  Ves.  454 ;  Pres- 
ley V.  Davis,  7  Rich.  Eq.  109.  See  Carmichael  v.  Hughes,  20  L.  J.  Ch. 
396 ;  Ransome  v.  Burgess,  L.  R.  3  Eq.  773. 

*  Andrews  v.  Partington,  3  Bro.  Ch.  60  ;  Cotham  v.  "West,  1  Beav.  381 ; 
Bridge  v.  Brown,  2  N.  C.  C.  187. 

'  Lee  V.  Brown,  4  Ves.  369;  Barlow  v.  Grant,  1  Vern.  255;  Franklin 
V.  Greene,  2  Vern.  137;  1  Rop.  Leg.  768;  Sisson  v.  Shaw,  9  Ves.  288; 
Maberly  v.  Turton,  14  Ves.  499  ;  Ex  parte  Darlington,  1  B.  &  B.  241. 

8  Hearle  v.  Greenbank,  2  Atk.  697,  716  ;  Long  v.  Long,  3  Ves.  286,  n. 

®  Rawlins  v.  Goldfrap,  5  Ves.  440. 

'"  Ayn»worth  v.  Pratohett,  13  Ves.  321;  Allen  v.  Coster,  1  Beav.  202; 
Josselyn  v.  Josselyn,  9  Sim.  63  ;  Stretch  v.  Watkins,  1  Mad.  253 ;  Newport 


§§  615,  616.]  MAINTENANCE    FROxM    INCOME.  201 

exigencies  are  very  pressing,  the  court  will  increase  the 
amount,  although  there  is  a  direction  for  accumulation,  and 
the  infant's  interest  is  contingent,^  If  there  are  two  funds 
from  which  maintenance  may  be  ordered,  it  will  be  ordered 
from  that  fund  from  which  it  will  be  most  beneficial  for  the 
infant  to  take  it.^  If  maintenance  is  directed  for  the  infant 
until  twenty-one,  its  marriage  does  not  determine  the  mainten- 
ance ;  ^  and  if  the  maintenance  is  directed  during  the  life  of 
A.,  the  allowance  will  continue  during  the  life  of  A.,  although 
the  children  are  more  than  twenty-one  years  of  age*  If  main- 
tenance is  directed,  but  no  time  is  limited,  it  will  cease  when 
the  infants  are  of  age.^  In  making  the  allowance,  the  trustee 
is  not  confined  to  the  income  of  the  year  ;  but  he  may  set  off 
the  gross  amount  of  the  maintenance  against  the  gross  amount 
of  income.^  If  maintenance  is  directed  by  will  during  minor- 
ity, and  the  property  is  given  over  in  case  the  infant  dies  under 
age,  the  court  will  not  permit  the  infant  to  be  deprived  of 
proper  maintenance  for  the  benefit  of  the  remainder-man,  nor 
will  it  permit  a  wasteful  maintenance  in  disregard  of  the  con- 
tingent rights  of  others.'' 

§  616.  A  distinction  is  made  between  property  coming  to  a 
child  from  a  parent,  or  from  a  person  in  the  place  of  a  parent, 
and  property  given  in  trust  for  an  infant  by  a  stranger.     When 

V.  Cook,  2  Asb.  332 ;  Corbin  v.  Wilson,  2  Asb.  178 ;  Evans  v.  Massey,  1  Y. 
&  J.  l'J6. 

'  Ibid. 

^  Bruin  v.  Knott,  1  Pbil.  572 ;  Lygon  v.  Lord,  14  Sim.  41 ;  Rawlins  v. 
Goldtrap,  5  Ves.  440;  Foljambe  v.  Willougbby,  2  S.  «&  S.  165;  Be  Asbley, 
1  R.  &  M.  371 ;  Wincb  v.  Wincb,  1  Cox,  433;'Methold  v.  Turner,  20  L.  J. 
Cb.  201 ;  Cbisolm  v.  Cbisolm,  4  Ricb.  Eq.  206. 

■*  Clianibers  v.  Goldwin,  11  Ves.  1. 

"  Badbam  v.  Moe,  1  R.  &  M.  631. 

^  Ibid. 

«  Carmichael  v.  Wilson,  3  Moll.  79;  Edwards  v.  Grove,  2  De  G.,  F.  & 
J.  210. 

'  Curtis  V.  Sraitb,  6  Blatcb.  537. 


202  TRUSTEES   FOR   INFANTS.  [CHAP.  XXI. 

the  gift  comes  from  parents,  or  persons  in  the  place  of  parents, 
whose  duty  it  is  to  support  the  children,  maintenance  will  be 
ordered  where  the  subject  of  the  trust  is  residuary  personal 
estate,  or  a  contingent  interest  only,  although  there  was  no 
power  in  the  will,  and  there  was  an  express  direction  for  an 
accumulation,  and  although  there  was  a  gift  over  to  other 
children,  if  the  chance  of  survivorship  is  equal. ^  If  the  chance 
of  survivorship  is  not  equal,  maintenance  will  not  be  allowed  ;2 
nor  will  it,  if  the  interest  is  real  estate  and  contingent  or  resid- 
uary.2  But  maintenance  will  be  refused  out  of  a  contingent 
interest,  or  where  the  fund  is  given  over  ;  or  where  the  gift 
proceeds  from  a  stranger,  or  from  a  grandfather ;  or  where 
the  infant  is  a  natural  child  not  adopted  by  the  father.^ 

§  617.  If  the  fund  goes  absolutely  to  the  infant,  and  no  con- 
flicting interests  can  arise,  the  order  for  maintenance  will  be 
made  on  petition  and  without  suit.^     But  if  there  are  opposing 

'  Aberley  v.  Vernon,  1  P.  Wms.  783;  Rogers  v.  Soutten,  2  Keen,  598; 
Incledon  v.  Northcote,  3  Atk.  433  ;  Harvey  v.  Harvey,  2  P.  Wins.  22  ;  Lam- 
bert V.  Parker,  Cocp.  143;  Brown  v.  Temperly,  3  Russ.  263;  Mills  v. 
Robarts,  1  R.  &  M.  555;  Ex  parte  Chambers,  1  R.  &  M.  577 ;  Boddy  v. 
Dawes,  1  Keen,  362 ;  Rhoades  t?.  Rboades,  43  111.  239  ;  Fairman  v.  Green,  10 
Ves.  45;  Lomax  v.  Lomax,  11  Ves.  48 ;  Mole  v.  Mole,  1  Dick.  810;  Green- 
well  V.  Greenwell,  5  Ves.  194 ;  Cavendish  v.  Mercer,  5  Ves.  195 ;  Collin  v. 
Blackburn,  9  Ves.  470  ;  McDermot  v.  Kealy,  3  Russ.  264  ;  Stretch  v. 
Watkins,  1  Mad.  253  ;  Seiberfs  App.  19  Penn.  St.  49;  Corbin  v.  AVilson, 
2  Ash.  208 ;  Newport  v.  Cook,  2  Ash.  342  ;  Matter  of  Ryder,  11  Paige, 
185  ;  Ex  parte  Kebble,  11  Ves.  604;  Turner  v.  Turner,  4  Sim.  434. 

2  Errat  v.  Barlow,  14  Ves.  202 ;  Kirae  v.  Welpitt,  3  Sim.  533 ;  Turner 
V.  Turner,  4  Sim.  430 ;  Cannings  v.  Flower,  7  Sim.  523. 

^  Green  v.  Ekins,  2  Atk.  476 ;  Bullock  v.  Stones,  2  Ves.  521 ;  Leake  v. 
Robinson,  2  Mer.  384. 

*  Errington  v.  Chapman,  12  Ves.  24;  Lowndes  v.  Lowndes,  15  Ves.  301. 
But  see  Greenwell  v.  Greenwell,  5  Ves.  194.  In  Seibert's  App.  19  Penn. 
St.  49,  maintenance  was  allowed,  though  the  gift  came  from  a  grandfather 
not  in  loco  parentis.  See  Chisolm  v.  Chisolm,  4  Rich.  Eq.  266,  and  Corbin 
V.  Wilson,  2  Ash.  208. 

*  Ex  parte  Whitfield,  2  Atk.  315 ;  Ex  parte  Kent,  3  Bro.  Ch.  88 ;  Ex 
parte  Salter,  3  Bro.  Ch.  500 ;  Ex  paiie  Mountfort,  15  Ves.  445 ;  Ex  jmrte 
Starkie,  3  Sim.  399  ;  Ex  parte  Chambers,  1  R.  &  M.  577  ;  Ex  parte  Green, 


§§  616-618.]  MAINTENANCE.  203 

and  complicated  interests,  the  court  will  not  act  without  a 
regular  suit  and  notice  to  all  parties.^ 

§  618.  It  is  a  settled  rule,  tliat  trustees  for  infants  should 
never,  on  their  own  authority,  break  in  upon  the  capital  of  the 
trust  fund  for  the  maintenance,  and  seldom  for  the  advancement 
of  their  ward.  Tliis  is  a  rule  for  the  protection  of  children,  and 
if  trustees  break  it,  their  accounts  will  be  disallowed,  although 
the  particular  case  is  a  hardship ;  as  it  is  better  that  a  single 
individual  should  suffer  a  hardship  which  he  might  have  avoided, 
than  that  the  interests  of  all  infants  should  be  endangered .^  Sir 
William  Grant  expressed  a  doubt,  whether  the  court  itself  had 
power  to  authorize  the  expenditure  of  the  trust  fund  for  the 
infant's  support  and  advancement.^  It  is  now,  however,  well 
established,  that  the  court  has  such  power,  and  will  exercise  it 
with  caution  in  a  proper  case.^   But  if  the  trustee  exercises  the 

IJ.  &  W.  253  ;  Ex  parte  Myercough,  IJ.  &  W.  253  ;  Ex  parte  Hayes,  13 
Jur.  765;  3  De  G.  &  Sm.  485;  Matter  of  Bostwic-k,  4  John.  Ch.  100; 
Rice  V.  Tonnele,  4  Sand.  Ch.  671  ;  Cross  v.  Bevan,  2  Sim.  (N.  s.)  53. 

^  Fairman  v.  Green,  10  Ves.  45. 

*  Per  Sir  R.  P.  Arden,  Walker  v.  Wetherell,  6  Ves.  473 ;  Davies  v. 
Austen,  1  Ves.  Jr.  247;  Lee  v.  Brown,  4  Ves.  362;  Anon.  Moseley,  41; 
Davis  V.  Harkness,  1  Gilm.  173 ;  Prince  v.  Logan,  Spears,  Eq.  29 ;  Mc- 
Dowell V.  Caldwell,  2  McCord,  Ch.  43 ;  Davis  v.  Roberts,  1  Sm.  &  M.  Ch. 
543;  Hester  v.  Wilkinson,  G  Humph.  219;  Frelick  v.  Turner,  26  Miss. 
393;  Martin\s  App.  23  Penn.  St.  438;  Petit's  App.  39  PtMin.  St.  324; 
Villard  v.  Chovin,  2  Strob.  Eq.  40;  Bybee  v.  Thorp,  4  B.  Mon.  313;  Car- 
ter V.  Rolland,  11  Humph.  339;  Cornwise  v.  Bourgum,  2  Ga.  Dec.  15; 
Haigood  v.  Wells,  1  Hill,  Eq.  59;  Swinnock  v.  Crisp,  Freem.  78;  Caffey 
V.  McMichael.  64  N.  C.  507  ;  Matter  of  Bostwick,  4  John.  Ch.  101. 

=>  Walker  v.  Wetherell,  6  Ves.  474. 

■•  Barlow  v.  Grant,  1  Vern.  255;  Ex  parte  Green,  1  J.  &  W.  253;  Ex 
parte  Chambers,  1  R.  &  M.  577  ;  Ex  parte  Knott,  1  R.  &  j\L  499  ;  Ex  parte 
Swift,  1  R.  &  M.  575 ;  Evans  v.  Massey,  1  Y.  &  J.  196 ;  Bridge  v  Brown, 
2  N.  C.  C.  181 ;  Williams's  Case,  3  Bland,  186 ;  Ex  parte  Potts,  1  Ash. 
340;  Ex  parte  Bostwick,  4  John.  Ch.  100;  Long  v.  Norcom,  2  Ired.  Eq. 
354;  Haigood  v.  Wells,  1  Hill,  Eq.  79;  Maupin  v.  Dulany,  5  Dana,  593; 
Worthington  v.  McCraer,  23  Beav.  81 ;  Prince  v.  Hine,  26  Bcav.  634;  Ex 
2Xirlc  Hayes,  3  De  G.  &  Sm.  485;  13  Jur.  762;  Ex  parte  Allen,  3  De  G. 
&  Sm.  485 ;  Withers  r.  Hickman,  6  B.  Mon.  293 ;  Prince  v.  Logan,  1 
Spears,  Eq.  29 ;  Teague  v.  Dendy,  2  McCord,  Ch.  207. 


204  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

power  by  breaking  in  upon  the  trust  fund  for  mere  maintenance, 
without  leave  of  the  court,  he  will  be  compelled  to  replace  it.^ 
It  has  been  said,  that  a  trustee  may  pay  from  the  capital  fund 
upon  his  own  authority  in  case  of  necessity  ;  -  but  it  would  not 
be  safe  to  follow  this.  The  burden  would  be  on  the  trustee  to 
prove  a  case  of  necessity,  and  that  it  was  impossible  to  apply 
to  a  court  for  direction  ;  for  courts  look  with  disfavor  upon  the 
assumption  of  such  authority  by  guardians  and  trustees.^  When 
such  a  case  can  be  made,  the  trustee  will  be  allowed  the  amount 
paid  out,  in  his  accounts.^  Courts  are  much  more  willing  to 
authorize  an  expenditure  of  the  capital  fund  of  the  trust  to 
establish  the  minor  in  life,  or  to  pay  his  entrance  fee  as  an 
apprentice,  or  to  educate  him  properly  for  business  and  life, 
than  for  mere  maintenance.  In  such  cases  courts  look  upon 
the  capital,  not  as  consumed  and  extinguished,  but  as  converted 
into  another  and  useful  form,°  This  allowance  from  the  capital 
fund  is  confined  to  cases  where  the  trust  fund  is  small:  if  the 
capital  consists  of  several  thousand  pounds,  and  the  income  is 

'  Davies  v.  Austen,  3  Bro.  Ch.  178 ;  Lee  v.  Brown,  4  Ves.  362  ;  Walker 
V.  Wetherell,  6  Ves.  473. 

2  Davies  v.  Austen,  3  Bro.  Ch.  178;  Barlow  v.  Grant,  1  Vern.  255; 
Carmichael  v.  Wilson,  3  Moll.  79 ;  Bridge  v.  Brown,  2Y.&  Col.  Ch.  181. 

^  Prince  v.  Logan,  Spears,  Eq.  29 ;  Teague  v.  Dendy,  2  McCord,  Ch. 
207;  McDowell  v.  Caldwell,  2  McCord,  Ch.  43;  Davis  v.  Roberts,  1  Sm. 
&  M.  Ch.  543 ;  Myers  v.  Wade,  6  Rand.  444 ;  Davis  v.  Harkness,  1  Gilm. 
173;  Holmes  r.  Joslin,  5  Strob.  31 ;  Downey  v.  Bullock,  7  Ired.  Eq.  102; 
Villard  v.  Chovin,  2  Strob.  Eq.  40. 

*  Long  I'.  Norcona,  2  Ired.  Eq.  354;  Sparhawk  v.  Buell,  9  Vt.  41; 
Withers  v.  Hickman,  6  B.  Mon.  203  ;  Matter  of  Bostwick,  4  John.  Ch.  100. 

^  Williams's  Case,  3  Bland,  186;  Hanson  v.  Chapman,  3  Bland,  198; 
Matter  of  Bostwick,  4  John.  *Ch.  100;  Barlow  v.  Grant,  1  Vern.  255; 
Franklin  v.  Green,  2  Vern.  137;  In  re  England,  1  R.  &  M.  499;  Ex  parte 
Chambers,  1  R.  &  M.  577  ;  Re  Welch,  23  L.  J.  Ch.  344;  Nunn  v.  Harvey, 

2  De  G.  «&  Sm.  301 ;  Be  Clarke,  17  Jur.  362 ;  Be  Lane,  17  Jur.  219  ;  Worth- 
ington  V.  McCraer,  23  Beav.  81 ;  Ex  parte  Swift,  1  R.  «&  M.575;  Ex  parte 
Green,  1  J.  &  W.  253 ;  Bridge  v.  Brown,  2  Y.  &  Coll.  Ch.  181 ;  Davies  v. 
Davies,  2  De  G.,  M.  &  G.  53  ;  Walsh  v.  Walsh,  1  DrcAv.  64 ;  Ex  parte  Hayes, 

3  De  G.  &  Sm.  485 ;  Swinnock  v.  Crisp,  Freem.  78  ;  Ex  parte  McKey,  1  B. 
&  B.  405 ;  Sisson  v.  Shaw,  9  Ves.  285 ;  Prince  v.  Hine,  26  Beav.  634. 


§§  618,  619.]  MAINTENANCE.  205 

sufficient  to  educate  and  support  the  infant,  the  court  will  not 
allow  nor  justify  any  expenditure  of  the  principal.^ 

§  619.  Where  there  is  a  limitation  over  to  a  stranger  on  the 
death  of  the  infant,  neither  the  trustee  nor  the  court  can  expend 
any  part  of  the  capital  fund  for  the  maintenance  or  advancement 
of  the  ward.  As  ^Yhere  £100  were  given  to  trustees  to  apply 
the  income  to  the  support  and  education  of  an  infant,  and  to 
transfer  the  principal  to  him  at  twenty-one  ;  but  if  he  died  under 
that  age,  the  said  sum  was  to  be  paid  over  to  other  persons,  the 
court  refused  leave  to  expend  any  part  of  the  capital.^  Where 
an  infant,  upon  a  certain  contingency,  was  to  lose  certain  rights, 
and  the  trustee  made  an  advancement  before  the  contingency 
happened,  and  it  afterwards  happened  in  the  ward's  favor,  the 
advancement  was  allowed  to  the  trustee.^  So  where  a  legacy 
is  given  to  a  class  of  children,  with  a  limitation  over  to  the 
others  in  case  of  the  death  of  one  before  marriage  or  twenty- 
one,  an  allowance  may  be  made,  on  the  ground  that  all  have  an 
equal  chance  of  surviving,  before  their  particular  proportions 
are  vested  so  that  they  cannot  be  divested.^  An  advancement 
may  be  made  if  all  the  parties  in  remainder  are  competent  to 
consent,  and  do  consent  to  the  allowance.^  But  advancements 
cannot  be  made  where  the  gift  is  to  a  class  of  children,  though 
not  absolutely  to  them,  Init  in  certain  events  to  go  over  to  a 
stranger.*^     If  the  limitation  over  is  to  the  issue  of  a  deceased 

^  Barlow  v.  Grant,  1  Vern.  255;  Davies  v.  Austen,  1  Ves.  Jr.  247;  3 
Bro.  Cli.  178;  Bcasley  v.  Magrath,  2  Sch.  &  L.  35;  Deen  i'.  Cozzens,  7 
Rob.  N.  Y.  178. 

*  Lee  V.  Brown,  4  Ves.  362;  Van  Vecbten  v.  Van  Vechten,  8  Paige, 
104 ;  Deen  v.  Cozzens,  7  Rob.  N.  Y.  178. 

8  Wortiiington  v.  MoCraer,  23  Beav.  81. 

*  Franklin  v.  Green,  2  Vern.  137;  Greenwell  v.  Greenwell,  5  Ves.  194, 
and  notes;  Brandon  v.  Aston,  2  Y.  &  Col.  Ch.  30;  Marshall  i'.  IloUoway, 
2  Swanst.  430. 

^  Evans  V.  Massey,  1  Y.  «&  J.  19G ;  Cavendish  v.  Mercer,  5  Ves.  195,  n. 
®  Ex  parte  Kebble,  11  Ves.  604,  overruling  Greenwell  v.  Greenwell,  6 
Ves.  194;  Errington  v.  Chapman,  12  Ves.  20. 


206  TRUSTEES    FOR   INFANTS.  [CHAF.  XXI. 

child,  such  issue  is  a  stranger,  and  no  allowance  can  be  made.^ 
So  where  the  children  in  being  are  not  all  the  persons  interested 
in  the  fund,  as  where  another  child  may  be  born.^  If  a  legacy 
is  given  to  children  when  they  become  twenty-one,  the  court 
cannot  anticipate  the  time  and  make  an  allowance,^  as  it  may 
not  come  to  them  at  all.  If,  however,  there  is  a  clear  intention, 
to  be  gathered  from  the  whole  will,  that  the  children  are  to 
have  a  maintenance,  the  court  will  order  it,  although  there  is  a 
gift  over."^ 

§  620.  When  a  trust  is  created,  and  the  trustees  are  directed 
to  pay  the  income  to  a  person  for  the  support  of  his  children, 
he  will  be  entitled  to  receive  the  income  so  long  as  he  continues 
to  maintain  them.^  Where  the  income  was  directed  to  be  paid 
by  the  trustees  to  M.  H.  H.  for  the  maintenance  of  her  children, 
the  fund  to  be  divided  among  her  children  at  twenty-one,  and, 
in  default  of  issue,  over  to  another  person,  it  was  held  that  the 
income  was  payable  to  M.  H.  H.,  although  she  had  no  child.° 
Where  a  widow  was  to  receive  the  income  from  trustees  for  the 
support  of  herself  and  children,  and  she  eloped,  she  was  held 
entitled  only  to  a  part  of  the  income.'^     So  where  a  trustee  was 

1  Ex  parte  Kebble,  11  Ves.  606;  Turner  v.  Turner,  4  Sim.  430;  Erring- 
ton  V.  Chapman,  12  Ves.  20;  Ex  parte  Whitehead,  2  Y.  &  J.  243;  Fendall 
V.  Nash,  5  Ves.  197,  n.,  contra,  but  disapproved  by  Lord  Eldon,  14  Ves. 
203. 

"^  Ex  parte  Kebble,  11  Ves.  604. 

^  Lomax  v.  Lomax,  11  Ves.  48.  See  Haley  v.  Bannister,  4  Mad.  275; 
Errat  v.  Barlow,  14  Ves.  202;  Cannings  v.  Flower,  7  Sim.  253;  Turner  v. 
Turner,  4  Sim.  430. 

*  Lambert  v.  Parker,  G.  Coop.  143. 

'  HadoAv  V.  Hadow,  9  Sim.  438  ;  Jubber  v.  Jubber,  9  Sim.  503  ;  Berkely 
V.  Swinburne,  6  Sim.  613;  Thurston  v.  Essington,  Jac.  361,  n. ;  Longmore 
V.  Elcum,  2  Y.  «&  C.  Ch.  363 ;  Leach  v.  Leach,  13  Sim.  304 ;  Hart  v.  Tribe, 
19  Beav.  149 ;  Brown  v.  Paull,  I  Sim.  (n.  s.)  92 ;  Hammond  v.  Neame,  1 
Swans.  35 ;  Raikes  v.  Ward,  1  Hare,  445 ;  Crockett  v.  Crockett,  2  Phil. 
553;  Chase  v.  Chase,  2  Allen,  104;  Lorinz  v.  Loring,  100  jNLass.  340. 

*  Hammond  v.  Neame,  1  Swans.  35  ;  Loring  v.  Loring,  100  Mass.  340. 
7  Castle  V.  Castle,  3  Jur.  (v.  s.)   723 ;    1  De  G.  &  J.   352  ;   Loring  v 

Loring,  100  Mass.  340. 


§§  619-621.]  MAINTENANCE.  207 

to  pay  the  income  to  the  testator's  son  for  the  support  of  him- 
self and  children,  and  the  son  misapplied  the  income,  the  court 
said  that  lie  took  the  income  as  a  subtrustee  for  his  wife  and 
children,  and  that  the  court  had  power  to  regulate  and  control 
it,  by  directions  to  the  original  trustee,  in  such  manner  as  to 
accomplish  the  purpose  for  which  it  was  given. ^  The  fund  is  in 
some  sort  payable  to  the  father,  but  the  trustee  will  be  held  ac- 
countable for  its  proper  application. ^  In  paying  the  income  for 
maintenance,  the  trustee  must  exercise  a  sound  discretion.  He 
may  apply  it  himself,  or  he  may  place  it  in  the  hands  of  parents 
or  guardians  ;  but  he  must  not  place  it  in  the  hands  of  a  bene- 
ficiary, who  mentally  or  morally  is  incapable  of  using  it  prop- 
erly or  profitably ;  and  he  must  not  allow  the  income  to  be 
thrown  away,  or  perverted  from  its  purpose.^ 

§  621.  In  most  respects,  the  relation  between  the  trustee  and 
an  infant  cestui  que  trust  is  the  same  as  between  trustees  and 
other  cestuis  que  trust.  An  infant  has  the  same  remedies  for  a 
breach  of  trust  as  if  of  full  age.  If  a  trustee  employs  the  infant's 
money  in  his  own  business,  the  infant  has  an  election  to  take 
the  profits  or  the  interest;^  or,  if  an  improper  investment  is 
made  by  the  trustee,  the  infant  can  enforce  compensation  for 
the  loss.^  If,  by  any  neglect  or  violation  of  duty  by  a  trustee, 
a  loss  happens  to  the  infant,  the  trustee  must  make  it  up ;  as  if 
a  trustee  should  allow  the  statute  of  limitations  to  run  without 
suit  on  a  claim  in  favor  of  an  infant,  the  trustee  would  be  held 

1  Chase  V.  Chase,  2  Allen,  104;  Loring  v.  Loring,  100  Mass.  340. 

*  Andrews  v.  Partington,  2  Cox,  223;  Robinson  v.  Tickell,  8  Ves.  142; 
Woods  V.  Woods,  1  My,  &  Cr.  409  ;  Raikes  v.  Ward,  1  Hare,  445 ;  Crockett 
V.  Crockett,  2  Phil.  553;  Webb  v.  Wool,  2  Sim.  (n.  s.)  267;  Joddrell  v. 
Joddrell,  14  Beav.  397;  Biddies  v.  Biddies,  16  Sim.  1;  Wetherell  v. 
AVetherell,  1  Keen,  80;  Brown  v.  Casamajor,  4  Ves.  498;  Haniley  v.  Gil- 
bert, Jac.  354 ;  Collier  v.  Collier,  3  Ves.  33. 

'  Mason  v.  Jones,  2  Barb.  S.  C.  248 ;  Gott  v.  Cook,  7  Paige,  638 ;  Van 
Vechten  v.  Van  Vechten,  8  Paige,  104. 

*  Anon.  2  Ves.  630. 

*  Holmes  v.  Dring,  2  Cox,  1  ;  Terry  v.  Terry,  Pr.  Ch.  273. 


208  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

to  account  for  the  loss.^  So  if  he  should  suffer  five  years  to 
elapse  without  claim,  after  a  stranger  had  entered  upon  the 
infant's  estate  and  levied  a  fine.^  In  all  such  cases,  the  trus- 
tees will  be  responsible  for  all  the  loss  that  occurs  from  their 
negligence  or  mismanagement. 

§  622.  It  is  the  duty  of  trustees  to  accumulate  all  the  income 
of  a  trust  for  infants,  which  is  not  employed  in  maintenance 
and  education  as  before  stated,  whether  a  direction  for  such 
accumulation  is  contained  in  the  instrument  of  trust  or  not. 
This  rule  applies  where  the  subject  of  the  trust  is  a  residue  of 
the  testator's  personal  estate,  and  the  interest  of  the  infant  is 
contingent,  as  where  the  trust  is  for  a  child,  "if"  or  "when" 
it  becomes  twenty-one.^  But  the  rule  will  not  apply  where  a 
sum  certain  is  to  be  paid  to  the  infant  when  twenty-one  ;  ^  nor 
to  the  income  of  real  estate  where  such  estate  is  given  to  the 
infant  if  he  shall  reach  twenty-one ;  ^  unless  there  is  a  direc- 
tion that  the  income  in  the  mean  time  shall  be  used  for  the 
infant's  benefit.^  Without  such  direction,  the  income  in  the 
first  case  would  fall  into  the  residue,"  and  in  the  second  case 
it  would  go  to  the  heirs-at-law.^  If  the  infant  takes  a  vested 
interest  in  the  trust  fund,  and  the  payment  only  is  postponed, 
and  an  accumulation  is  directed  until  he  is  twenty-four,  he 
is  absolutely  entitled  to  the  fund  at  twenty-one,  and  will  be 

1  Williams  v.  Otey,  8  Humph.  563  ;  Smilie  v.  Biffle,  2  Barr,  52;  AVyck 
V.  East  India  Co.  3  P.  Wms.  309 ;  Wooldredge  v.  Planters'  Bank,  1  Sneed, 
297 ;    Worthy  v.  Johnson,  10  Ga.  358 ;    Long  v.  Cason,  4  Rich.  Eq.  60 
Blake  v.  Allman,  5  Jon.  Eq.  407. 

*  Huntington  v.  Huntington,  3  P.  Wms.  310,  n. ;  Allen  v.  Sayer,  2  Vern 
368,  is  the  other  way,  but  it  is  not  considered  the  true  exposition  of  the  law 
Fentland  v.  Stokes,  2  B.  &  B.  75. 

8  Green  v.  Ekins,  2  Atk.  473 ;  Studholme  v.  Hodgson,  3  P.  Wms.  299 
Trevanion  v.  Vivian,  2  Ves.  430 ;  Bullock  v.  Stones,  2  Ves.  430. 

*  Leake  v.  Robinson,  2  Mer.  384. 

6  Green  v.  Ekins,  2  Atk.  473;  Studholme  v.  Hodgson,  3  P.  Wms.  299; 
Bullock  V.  Stones,  2  Ves.  521. 

«  Bullock  V.  Stones,  2  Ves.  430.  '  Ibid.  «  Ibid. 


§§  621-624.]  MAINTENANCE.  209 

entitled  to  receive  the  income  at  tliat  time,  and  the  corpus  of* 
the  trust  at  the  time  fixed,  so  that  accumulation  will  cease  at 
twenty-one.-^ 

§  623.  The  court  has  power  to  apply  the  income  in  support 
of  the  infant  although  he  is  abroad,  or  out  of  the  jurisdiction 
of  the  court.  In  such  cases,  the  court  may  require  a  guardian^ 
or  attorney^  to  be  appointed  within  the  jurisdiction  to  receive 
the  income  ;  or  the  court  may  a])point  a  guardian  who  resides 
in  the  same  jurisdiction  with  the  infant,  and  who  has  been 
appointed  guardian  by  the  courts  in  that  jurisdiction.'*  In 
some  instances  where  the  fund  was  small,  the  court  has  ordered 
not  only  the  income,  but  the  whole  corpus  of  the  trust  to  be 
paid  to  the  parents  residing  abroad,^  or  who  were  about  emi- 
grating.*^ If  the  trustee  is  within  the  jurisdiction,  the  court 
can  take  administration  of  the  trust  fund,  and  compel  a  proper 
application  of  the  income  to  the  purposes  for  which  it  was 
given ; '  and  it  may  use  its  power  to  compel  the  parents  resid- 
ing abroad  to  bring  the  infants  within  the  jurisdiction,  by 
refusing  any  allowance  from  the  income  for  maintenance.® 

§  624.  If  a  trustee  holds  in  his  hands  a  sum  of  money  to  be 
paid  absolutely  to  an  infant,  he  must  not  pay  it  to  the  infant, 
nor  to  his  father  or  other  person,  without  the  sanction  of  the 
court.^  Should  he  do  so,  he  may  be  compelled  to  pay  it  again 
to  the  infant  when  he  comes  of  age.^°    Even  a  receipt  or  release 

'  Saunders  v.  Vautier,  4  Beav.  115;  Cr.  &  Ph.  210. 

'  Lofxan  V.  Fairlee,  Jac.  193. 

^  De  Weever  v.  Rockport,  6  Beav.  391  ;  In  re  Morrison,  16  Sim.  42 ; 
Hart  V.  Tribe,  19  Beav.  149. 

*  Daniel  v.  Newton,  8  Beav.  485. 

"  Volans  V.  Carr,  2  De  G.  &  Sin.  242. 

«  Walsh  V.  Walsh,  1  Drew.  64;  Ex  jmrte  Hayes,  3  De  G.  &  Sm.  485. 

7  Chase  V.  Chase,  2  Allen.  101. 

'  Lotkwood  V.  Fenton,  1  Sm.  &  G.  73. 

^  Furman  v.  Coe,  1  Caines's  Cases,  96 ;  Sparhawk  v.  Buell,  9  Vt.  41. 

'»  Dagley  v.  Tolferry,  1  P.  Wms.  285;  Phillips  v.  Pa^et,  2  Atk.  80; 
Davies  v.  Austen,  3  Bro.  Ch.  178 ;  Lee  v.  Brown,  1  Ves.  369. 

TOL.  II.  14 


210  TRUSTEES    FOR   INFANTS.  [CHAP.  XXI. 

taken  from  the  infant  under  age  is  wortliless  ;  ^  but  an  infant, 
after  coming  of  age,  can  confirm  such  payments  by  acts  clearly 
intended  to  sanction  and  confirm  them.^  If  the  infant  fraudu- 
lently represents  himself  to  be  of  age,  and  thus  procures  pay- 
ments from  the  trustees,  he  will  be  estopped  to  claim  the  fund 
again.^  In  the  United  States,  guardians  are  appointed  by 
probate  courts  to  take  charge  of  infants'  estates.  Such  guar- 
dians are  required  to  give  bonds  for  the  security  of  such  estates, 
and  payments  may  safely  be  made  to  them.*  In  some  instances 
where  the  sums  are  small,  courts  have  directed  them  to  be  paid 
directly  to  the  persons  maintaining  the  children,  to  save  the 
expenses  of  obtaining  guardianship,^  Where  the  instrument 
of  trust  directs  the  manner  of  paying  over  the  money,  the 
trustee  will  be  safe  in  following  the  directions.^ 

'  Overton  v.  Bannister,  3  Hare,  503 ;  8  Jur.  996. 

2  Dagley  v.  Tolferry,  1  P.  Wins.  285 ;  Lee  v.  Brown,  4  Ves.  362 ; 
Cooper  V.  Thornton,  3  Bro.  Ch.  97  ;  Cory  v.  Gertcken,  2  Mad.  40. 

3  Cory  V.  Gertcken,  2  Mad.  40 ;  Overton  v.  Bannister,  3  Hare,  503. 

*  Furinan  v.  Coe,  1  Caines's  Ca.  96 ;  Sparhawk  v.  Buell,  9  Vt.  41 ;  Hoyt 
V.  Hilton,  2  Edw.  Ch.  202. 

5  Farrance  v.  Viley,  21  L.  J.  Ch.  313  ;  Ker  v.  Buxton,  16  Jur.  491. 

«  2  Wms.  Ex'rs,  866  ;  1  Rop.  Leg.  771 ;  Cooper  v.  Thornton,  3  Bro.  Ch. 
96,  186;  Robinson  v.  Tickell,  8  Ves.  142. 


§  624.]  TRUSTEES    FOR   MARRIED    WOMEN.  211 


CHAPTER   XXII. 

TRUSTEES   FOR   MARRIED   WOMEN. 

§§  625,  626.  Rights  of  married  women  to  property  at  common  law  and  in  equity. 

§  627.  Riglit  of  a  married  woman  to  a  settlement  out  of  her  equitable  property. 

§  628.  When  proceedings  must  be  taken  to  obtain  a  settlement. 

§  629.  How  the  proceed infis  may  be  taken. 

§  630.  A  trustee  may  decline  to  pay  to  the  husband  before  a  settlement  is  made. 

§  631.  In  case  of  the  mnrriage  of  a  ward  of  court. 

§  632.  Against  whom  the  equity  of  a  settlement  will  be  enforced. 
§§  633,  634.  To  what  property  a  wife's  right  to  a  settlement  extends. 

§  635.  Where  a  wife  is  entitled  to  a  second  settlement. 

§  636.  What  amount  will  be  settled  on  a  wife. 

§  637.  Where  a  husband  refuses  to  make  a  settlement. 

§  638.  Distinction  between  survivorship  and  the  right  to  a  settlement. 

§  639.  Whether  a  husband  has  reduced  a  wife's  chases  in  action  to  possession. 
§§  640-642.  What  is  and  what  is  not  a  reduction  to  possession. 

§  643.  Effect  of  a  reduction  to  possession  by  the  husband. 

§  644.  Husband  entitled  to  joint  property. 

§  645.  A  settlement  extends  to  children,  when. 

§  646.  The  right  of  a  married  woman  to  hdld  property  to  her  separate  use. 

§  647.  How  a  trust  for  her  separate  use  may  be  created. 

§  648.  The  words  that  create  a  separate  use. 

§  649.  Words  that  do  not  create  a  separate  use. 

§  650.   State  of  the  authorities,  and  the  general  rule  as  to  her  separate  use. 

§  651.  Must  be  for  the  separate  use  of  the  wife  tilone. 

§  652.  Changeable  rights  of  a  woman  to  property  settled  to  her  separate  use. 

§  653.  To  what  marriages  the  separate  use  extends. 

§  654.  How  a  married  woman  may  deal  with  her  separate  property. 

§  655.  General  rule  as  to  the  right  of  a  married  woman  to  deal  with  her  separate 
estate. 

§  656.  As  to  real  estate. 

§  657.  Power  to  contract  debts. 
§§  658,  659.  How  far  her  contracts  bind  her  separate  estate. 
§§  660,  661.  Rules  in  England  and  the  various  States. 

§  662.  Married  woman  not  personally  bound  by  her  contracts. 

§  663.  The  principles  that  ap|)ly  to  a  wife's  separate  estate. 

§  664.  Savings  and  accumulations  out  of  her  separate  estate. 

§  665.  Rights  of  the  wife  against  her  imsband's  estate  where  he  receives  the  income  of 
lier  separate  estate. 

§  666.  If  a  i)usl;and  receives  her  separate  estate,  he  becomes  a  trustee. 

§  667.  Right  of  a  married  womm  to  the  possession  of  her  separate  estate. 

§  668.  Disposition  of  a  wife's  separate  estate  by  will,  descent,  or  otherwise. 

§  669.  Where  a  breach  of  trust  is  committed  by  a  married  woman  or  by  her  procure- 
ment. 


212  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

§  670,  671.  Restraints  upon  anticipation  or  alienation  bj-  a  married  woman. 

§  672,  673.  Deeds  of  sepiiration  between  husband  and  wife. 

§  674.  Riglits  of  the  wife  under  deeds  of  separation. 

§  675.  Statutes  of  various  States  in  relation  to  the  rights  of  married  women  to  property. 

§  676.  These  statutes  do  not  aflect  rights  which  were  vested  before  the  passage  of  the 

statutes. 
§  677.  Nor  do  they  affect  settlements  made  before  the  statutes. 
§  678.  Husband  and  Avife  maj-  be  agents  for  each  other.     How  far  a  husband  may  deal 

with  his  wife's  separate  property. 
§  679.  A  wife  may  give  her  separate  property  to  her  husband. 
§  680.  Separate  estate  for  married  women  under  the  statutes  governed  by  same  rules 

that  governed  separate  estates  under  settlements. 
§  681.  Right  of  husband  to  curtesj-;  cannot  convey  his  right. 
§  682.  Rights  of  married  women  to  make  wills  under  the  statutes;  rights  of  the  husband 

in  the  absence  of  a  will. 
§  683.  Rights  of  married  women  to  be  trustees,  &c.,  and  to  sue  and  be  sued. 
§  684.  A  married  woman  may  sell  her  personal  propert}'. 
§  685.  But  cannot  convey  her  real  estate  without  the  consent  of  her  husband. 
§  686.  The  statutes  only  refer  to  the  property  of  married  women.     If  they  have  no 

property,  their  rights  are  not  altered. 

§  625.  At  common  law,  a  husband  became  entitled  to  re- 
ceive the  rents  and  profits  of  his  wife's  real  estate  during  their 
joint  lives,  and  he  became  absolutely  entitled  to  all  her  per- 
sonal property  in  possession,  and  to  all  her  cJioses  in  action  if 
he  reduced  them  to  possession  during  his  life.  If  he  did  not 
reduce  them  to  possession,  and  survived  her,  he  was  entitled 
to  be  her  administrator,  and  he  thus  took  all  her  choses  in 
action.  He  also  was  entitled  to  all  her  chattels  real,  and  had 
full  power  to  sell  and  convey  them.  But  if  the  husband  died 
■without  having  aliened  her  chattels  real,  or  without  having 
reduced  her  choses  in  action  to  possession,  she  as  survivor  con- 
tinued to  hold  them  as  if  she  had  never  been  married.  The 
principle  was  this :  by  the  marriage  the  husband  became  bound 
to  pay  all  debts  due  from  the  wife  before  marriage  ;  he  also 
became  bound  to  support  and  maintain  the  wife  and  her  chil- 
dren in  a  proper  manner.  In  consideration  of  these  obligations, 
and  to  enable  him  to  perform  these  duties,  the  law  gave  him 
the  property  of  the  wife  as  before  stated.  But  the  common 
law  had  this  defect :  the  husband  could  sell  and  dispose  of  all 
the  rights  of  property  which  he  thus  received  from  his  wife,  or 
he  might  become  bankrupt  the  day  after  his  marriage,  and  all 


§§  625,  626.]  RIGHTS    AT    COMMON   LAW.  213 

these  rights  would  go  to  his  assignees  or  strangers,  and  he 
might  be  left  entirely  unable  to  perform  the  obligations  and 
duties  which  were  imposed  upon  him  by  marriage,  and  in  con- 
sideration of  which  he  received  his  wife's  property.  The 
common  law  had  no  power  or  machinery  by  whicii  to  afford  a 
wife  any  protection  or  remedy  under  such  circumstances. 
But  in  courts  of  equity  remedies  were  devised  whereby  the 
property  of  a  wife,  or  some  portion  of  it,  might  be  withdrawn 
from  the  operation  of  the  rules  of  the  common  law,  and  pre- 
served for  her  maintenance,  in  case  her  husband  was  improvi- 
dent or  unfortunate.  This  improvement  in  the  law  was  effected 
through  a  system  of  trusts.  It  is  apparent  that  trusts  for 
women  may  be  of  two  kinds :  (1.)  Trusts  for  a  woman  gener- 
ally, as  for  any  other  individual  or  individuals  in  the  commu- 
nity ;  (2.)  Special  trusts  for  a  woman,  with  special  provisions 
as  to  the  ownership  and  enjoyment  of  the  property  or  its  in- 
come, and  special  directions  as  to  the  rights  of  any  present  or 
future  husband  over  it.  Growing  out  of  this  last  class  of  trusts, 
there  have  been  statutes  passed  changing  the  common  law, 
and  determining  the  rights  of  married  women  in  and  to  prop- 
erty that  they  may  possess  at  the  time  of  their  marriage,  or 
that  may  come  to  them  during  marriage.  It  is  the  purpose 
of  this  chapter:  (1.)  To  discuss  general  trusts  for  women,  and 
the  rights  and  duties  of  trustees  under  them  ;  (2.)  To  con- 
sider special  trusts  for  women,  or  trusts  for  their  sole  and 
separate  use  of  their  property,  and  the  rights  and  duties  of 
'trustees;  and  (3.)  To  notice  the  legislation  of  the  several 
States  respecting  the  property  of  married  wouaen. 

§  626.  If  a  sum  of  money  is  given  to  trustees  to  pay  either 
the  principal  or  the  income  to  a  woman,  and  such  woman  is 
married  at  the  time,  or  is  married  subsequently,  the  husband 
is  entitled  to  receive  the  principal  or  the  income,  as  the  case 
may  be.  In  law  the  husband  has  the  same  right  to  his  wife's 
equitable  property  that  he  has  to  her  legal  property.     All  per- 


214  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

sonal  property  held  in  trust  for  a  wife  belongs  to  the  husband.^ 
But  this  right  of  the  husband  over  his  wife's  choses  in  action 
is  perfected  only  by  his  reducing  them  to  possession  during 
his  life  ;  and  the  same  rule  applies  to  her  equitable  choses  in 
action.^  If  such  property  is  not  reduced  to  possession  during 
the  life  of  the  husband,  the  wife  takes  it,  as  survivor,  as  if  she 
had  never  been  married.  If  a  wife  dies  before  her  choses  in 
action  have  been  reduced  to  possession  by  her  husband,  he  may 
take  administration  of  her  estate,  and  thus  entitle  himself  to 
receive  all  the  personal  property,  legal  and  equitable,  that  came 
to  her.  But  nothing  short  of  actual  reduction  to  possession 
during  his  life,  will  give  a  husband  such  right  to  the  property 
as  will  defeat  the  wife's  title,  if  she  survives  him.  If,  there- 
fore, it  cannot  be  reduced  to  possession  during  his  life,  as  if  it 
is  a  reversion  only  during  the  whole  of  his  life,  he  can  have  no 
possession,  and  it  will  remain  to  her,  if  she  survives  him.^ 
So  where  the  interest  of  the  wife  is  partly  possessory,  and 
partly  reversionary,  the  husband  cannot  bind  the  property 
beyond  the  duration  of  his  own  life.*  So  if  a  husband  assigns 
his  wife's  reversionary  interest,  and  subsequently  and  during 
his  life  it  becomes  possessory,  but  is  never  reduced  to  actual 
possession,  it  survives  to  the  wife.^ 

§  627.  A  trustee  may  pay  over  a  wife's  equitable  property  to 
the  husband  if  he  pleases,  and  such  payment  will  discharge 

'  Murray  v.  Elibank,  10  Ves.  90 ;  Glaister  v.  Hewer,  8  Ves.  206  ;  Dunk- 
ley  V.  Dunkley,  2  De  G.,  M.  &  G.  390  ;  Napier  v.  Napier,  1  l^r.  &  W.  410 ; 
Mumford  v.  Murray,  1  Paige,  620;  Shaw  v.  Mitchell,  Davies,  216;  Crook 
V.  Turpin,  10  B.  Men.  214  ;  JEx  parte  Blagden,  2  Rose,  251 ;  Oswell  v. 
Probert,  2  Ves.  ,Jr.  680;  Sturgis  v.  Champneys,  5  M.  &  C.  103, 

2  Murphy  V.  Grice,  2  Dev.  &  Bat.  Eq.  199  ;  Tidd  i-.  Lister,  5  Mad.  432. 

^  Purdew  v.  Jackson,  1  Russ.  1 ;  Honner  v.  Morton,  3  Russ.  65  ;  Stanton 
V.  Hall,  2  Russ.  &  My.  175 ;  Elliott  v.  Cordell,  5  Mad.  149 ;  Tidd  v.  Lister, 
17  Eng.  L.  &  Eq.  567  ;  3  De  G.,  M.  &  G.  857. 

*  Stiffe  V.  Everitt,  1  M.  &  Cr.  37 ;  Harley  v.  Harley,  10  Hare,  335. 

5  Ellison  V.  Elwin,  13  Sim.  309 ;  Ashby  v.  Ashby,  1  Col.  553 ;  Baldwin 
r.  Baldwin,  6  De  G.  &  Sm.  319 ;  Hamilton  v.  Mils,  29  Beav.  193. 


§§  626,  627.]  RIGHTS    AT    COMMON    LAW.  215 

the  responsibility  of  the  trustee.  But  if  the  trustee  refuses  to 
deliver  the  possession  to  the  husband,  and  the  husband,  in 
order  to  reach  the  funds  in  the  hands  of  the  trustee  and  reduce 
them  to  possession,  commences  proceedings  in  equity,  the  court, 
on  the  maxim  that  he  who  seeks  equity  must  do  equity,  may  order 
a  proper  settlement  to  be  made  upon  the  wife  out  of  her  equitable 
property  in  the  hands  of  the  trustee.  This  is  called  the  wife's 
equity  to  a  settlement.^  It  is  an  equitable  right  which  a  mar- 
ried woman  has  to  a  provision  out  of  her  own  fortune,  before 
her  husband  reduces  it  to  possession,  and  it  stands  upon  a 
peculiar  doctrine  of  courts  of  equity.     The  extent  of  the  doc- 

^  Murray  v.  Elibank,  13  Ves.  1 ;  1  Lead.  Ca.  Eq.  360  ;  Bosvil  i;.  Bran- 
den,  1  P.  Wms.  458  ;  Browne  v.  Elton,  3  P.  Wins.  202  ;  Wallace  v.  Auldjo, 
2  Dr.  &  Sra.  216;  Osborn  v.  Morgan,  9  Hare,  432;  Ward  v.  Amory,  1 
Curtis,  432;  Davis  v.  Newton,  G  Met.  537;  Gassett  v.  Grout,  4  Met.  486; 
Carter  v.  Carter,  14  Sm.  &  M.  59  ;  Stevenson  v.  Brown,  3  Green,  Ch.  503  ; 
Tucker  v.  Andrews,  13  Me.  124;  Chase  v.  Palmer,  25  Me.  342;  Short  v. 
Moore,  10  Vt.  446 ;  Wilks  v.  Fitzpatrick,  1  Humph.  54 ;  Page  v.  Estes,  19 
Pick.  269  ;  Barron  v.  Barron,  24  "Vt.  375 ;  Andrews  v.  Jones,  10  Ala.  401 ; 
Guild  V.  Guild,  16  Ala.  122  ;  Wiles  v.  Wiles,  3  Md.  1  ;  James  v.  Gibbs, 

1  Pat.  &  Heath,  277 ;  Carleton  v.  Banks,  7  Ala.  34 ;  Van  Duzer  v.  Van 
Duzer,  6  Paige,  .368 ;  Whitesides  v.  Dorris,  7  Dana,  107  ;  Thomas  v. 
Shcpperd,  2  McCord,  Ch.  36 ;  Crook  v.  Tiirpin,  10  B.  Mon.  243 ;  Ward- 
law  V.  Gray,  2  Hill,  Ch.  651;  Moore  v.  Moore,  14  B.  Mon.  259;  Wright 
V.  Arnold,  14  B.  Mon.  642 ;  Poindexter  v.  Jeffries,  15  Grat.  363  ;  Van 
Epps  V.  Van  Deusen,  4  Paige,  64;  Dumond  v.  Magee,  4  John.  Ch  315; 
Corley  v.  Corley,  22  Ga.  178;  Dearin  v.  Fitzpatrick,  Meigs,  551;  Lay  r. 
Brown,  15  B.  Mon.  295  ;  Gallego  v.  Gallego,  2  Brock.  286  ;  Browning 
V.  Headley,  2  Rob.  Va.  342;  Durr  v.  Bowyer,  2  McCord,  Ch.  368  ;  Helms 
V.  Franciscus,  2  Bland,  546  ;  Bell  v.  Bell,  1  Kelly,  637  ;  Howard  v.  MolTatt, 

2  John.  Ch.  206  ;  Glen  v.  Fisher,  6  John.  Ch.  33  ;  Duvall  v.  Farmers' 
Bank,  4  Gill  &  J.  283;  Groverman  v.  Diffenderffer,  11  Gill  &  J.  15;  Myers 
V.  Myers,  1  Bail.  E(i.  24;  Ycldell  v.  Quarles,  Dudl.  Eq.  56;  Hill  i'.  Hill, 
1  Slrob.  Fa\.  2 ;  Bennett  v.  Dillingham,  2  Dana,  4;')6  ;  Thomas  v.  Kennedy, 
4  B.  Mon.  2;^5  ;  Napier  v.  Howard,  3  K<dly,  193  ;  Smith  t^.  Kane,  2  Paige, 
303;  Abernethy  v.  Abernethy,  8  Fla.  243;  Haviland  v.  Bloom,  6  John. 
Ch.  178.  In  North  Carolina,  this  equity  of  the  wife  to  a  settlement  is  not 
allowed.  Bryan  v.  Bryan,  1  Dev.  Eq.  47;  Lassiter  v.  Dawson,  2  Dev.  Kq. 
383.  In  Pennsylvania,  this  equity  is  enforced  in  the  courts  of  law,  by  im- 
posing terms  upon  the  husband's  right  to  recover  his  wife's  choses  in  action. 
llees  t'.  Waters,  9  Watts,  90. 


216  TRUSTEES   FOR   MARRIED   "WOMEN.  [CHAP.  XXII. 

trine  cannot  be  ascertained  from  any  general  reasoning.  It  is 
the  creation  of  courts  of  equity,  and,  to  ascertain  its  extent  or 
its  limitations,  recourse  must  be  had  to  the  practice  of  the 
courts.  Whenever  the  fortune  of  a  married  woman  is  within 
the  jurisdiction  of  tlie  court,  either  by  having  been  paid  into 
court,  or  by  a  suit  concerning  its  possession,  the  court  always 
directs  an  inquiry  whether  a  settlement  has  been  made  ;  and 
the  constant  habit  is  to  direct  a  settlement,  not  only  upon  the 
wife,  but  upon  the  children  also.  The  wife  cannot  say  that 
she  claims  a  settlement  for  herself,  and  not  for  the  children. 
She  has  the  option  to  have  no  settlement ;  but  if  a  settlement 
is  made,  it  must  be  upon  the  wife  and  children.  The  wife  is 
examined  in  open  court,  whether  she  wishes  a  settlement  or 
not :  if  she  does  not  desire  one,  the  possession  of  the  property 
is  delivered  over  to  her  husband.^ 

§  628.  The  steps  for  a  settlement  must  be  taken  before  the 
husband  has  obtained  the  actual  possession ;  for  courts  will  not 
compel  a  husband  who  has  possession  to  refund  the  property, 
in  order  that  a  settlement  may  be  made,^  unless  such  possession 
was  obtained  by  fraud,^  or  the  property  came  to  the  husband's 
hands  after  suits  for  its  possession  or  for  a  settlement  had  been 
instituted,^  or  unless  the  payment  to  him  was  in  some  way 
wrongful,^  in  which  case  equity  will  follow  the  property,  and 

'  Ibid. 

»  1  Rop.  Husb.  and  Wife,  270;  Carter  v.  Carter,  14  Sra.  &  M.  59; 
Carleton  v.  Banks,  7  Ala.  34  ;  Van  Duzer  v.  Van  Duzer,  6  Paige,  368 ; 
Wiles  V.  Wiles,  3  Md.  1 ;  Whitesides  v.  Dorris,  7  Dana,  107 ;  Rees  v. 
Waters,  9  Watts,  90;  Thomas  v.  Shepperd,  2  McCord,  Ch.  36  ;  Van  Epps 
V.  Van  Deuson,  4  Paige,  64;  Wickes  v.  Clarke,  8  Paige,  161;  Heath  v. 
Heath,  2  Hdl,  Ch.  100 ;  Perryclear  v.  Jacobs,  2  Hill,  Ch.  504 ;  Mitchell  v. 
Sevier,  9  Humph.  146 ;  Udell  v.  Kenney,  3  Cow.  591  ;  Dold  v.  Geiger,  2 
Grat.  98  ;  State  v.  Krebs,  6  Har.  &  J.  31 ;  Glaister  v.  Hewer,  8  Ves.  205 ; 
Pool  V.  Morris,  29  Ga.  374. 

*  Cohner  v.  Colmer,  2  Atk.  98;  Moseley,  113;  Watkyns  v.  Watkyns, 
2  Atk.  96  ;  2  Spence,  Eq.  Jur.  488. 

*  Crook  V.  Turpin,  10  B.  Mon.  243. 

*  Wardlaw  v.  Gray,  2  Hill,  Ch.  651. 


§§  627-629.]  RIGHT   TO    A    SETTLEMENT.  217 

order  a  settlement ;  and  where  a  husband  had  once  reduced  his 
wife's  pro[)erty  to  possession,  and  afterwards  settled  it  upon  her 
in  the  hands  of  a  trustee,  by  an  invalid  deed  of  separation,  and 
brought  a  suit  to  recover  back  the  possession,  the  court  ordered 
a  settlement.^  If  the  husband  has  the  money  in  hand  in  an- 
other right,  as  trustee  for  the  wife,  a  settlement  may  be 
ordered.^ 

§  629.  If  a  suit  is  already  pending  for  the  possession,  or  if 
the  property  is  in  court,  the  wife  may  intervene  by  petition.^  It 
was  for  some  time  thought,  that  a  wife  could  not  proceed  by 
original  bill ;  but  it  is  now  well  established  that  a  wife  may 
bring  a  bill  for  a  settlement,*  and  that  she  may  have  an  injunc- 
tion against  her  husband  from  proceeding  in  the  ecclesiastical 
or  probate  courts  to  recover  the  property.^  In  America,  some 
cases  have  gone  so  far  as  to  compel  a  settlement  when  the  suits 
to  recover  the  property  were  in  the  common-law  courts.^  But 
the  better  opinion  is,  that  where  a  husband,  or  a  creditor  or 
assignee,  is  pursuing  a  strictly  legal  or  statutory  right  in  a  court 
of  law,  a  court  of  equity  cannot  interfere  for  the  purpose  of 
enforcing  a  settlement.  As  where  a  wife  was  entitled  to  a  dis- 
tributive share  in  an  estate,  and  her  husband  became  a  bank- 
rupt, whereby  his  right  to  receive  his  wife's  distributive  share 
vested  in  his  assignee,  the  court  held  that  the  assignee  had  the 

1  Carter  v.  Carter,  14  Sm.  &  M.  59. 

*  Barron  v.  Barron,  24  Vt.  375 ;  Gray's  Estate,  1  Barr,  329 ;  Gooch- 
enaur's  Est.  11  Harris,  460. 

8  Greeley  v.  Lavender,  13  Beav.  62  ;  Scott  v.  Spashett,  3  Mac.  &  G. 
599. 

*  Elibank  v.  Montalieu,  5  Ves.  737  ;  Duncombe  v.  Grecnacre,  6  Jur. 
(x.  s.)  987;  7  Jur.  (n.  s.)  175  ;  1  Lead.  Ca.  Ecj.  362  ;  2  Story,  Eq.  Jur. 
§  1414;  Wiles  v.  Wiles,  3  Md.  1;  ISIoore  r.  Moore,  14  B.  Mon.  259; 
Wright  V.  Arnold,  14  B.  Mon.  642;  roindexter  v.  Jeffries,  15  Grat.  363. 

*  Jewson  V.  Moulson,  2  Atk.  419 ;  Dumond  v.  Magee,  4  John.  Ch.  318 ; 
Gardner  v.  Walker,  1  Strange,  503. 

^  Van  Epps  v.  Van  Deusen,  4  Paige,  64;  Corley  v.  Corley,  22  Ga.  178; 
Dearin  r.  Fitzpatrick,  Meigs,  551;  Dewall  v.  Covenhoven,  5  Paige,  5»1 ; 
Fry  V.  Fry,  7  Paige,  461 ;  Martin  v.  Martin,  1  Hoff.  462. 


218  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

absolute  legal  right  to  collect  the  wife's  distributive  share ;  but 
inasmuch  as  the  court  had  equity  jurisdiction  over  the  distribu- 
tion of  the  assets  of  the  bankrupt,  it  had  jurisdiction  to  order  a 
settlement  upon  the  wife,  before  the  assignee  distributed  the 
assets  among  the  husband's  creditors.^  In  cases  where  the 
court  would  have  no  jurisdiction  of  the  assets,  as  where  a 
wife's  distributive  share  was  trusteed  for  a  husband's  debt,  the 
court  could  not  interfere.^ 

§  630.  A  trustee  may  refuse  to  pay  over  the  wife's  equitable 
property  to  her  husband,  if  he  thinks  there  should  be  a  settle- 
ment ;,  and  the  husband  and  wife  and  trustee  can  arrange  a 
settlement  for  the  wife,  and  by  such  agreement  the  trustee  can 
pay  the  whole  or  part  of  the  equitable  assets  into  the  hands  of 
a  trustee  under  an  existing  settlement ;  and  such  arrangement 
will  be  as  valid  a  settlement  as  if  made  by  order  of  court.^  The 
trustee  is  always  justified  in  bringing  the  fund  into  court, 
although  the  wife  may  desire  it  to  be  paid  to  her  husband;* 
for  the  wife  cannot  consent  out  of  court  that  no  settlement 

'  Davis  V.  Newton,  6  Met.  537. 

*  Holbrook  v.  Waters,  19  Pick.  354  ;  Wheeler  v.  Bowen,  20  Pick.  563; 
Sturgis  V.  Champneys,  5  M.  &  C.  105 ;  Jewson  v.  Moulson,  2  Atk.  419 ; 
Parsons  v.  Parsons,  9  N.  H.  309;  Wiles  v.  Wiles,  3  Md.  1 ;  Barron  v.  Bar- 
ron, 24  Vt.  375  ;  Allen  v.  Allen,  6  Ired.  Eq.  293. 

*  Montefiore  v.  Behrens,  L.  R.  1  Eq.  171. 

*  Be  Swan,  2  Hem.  &  Mil.  34;  Campbell  v.  French,  3  Ves.  323;  Tas- 
burgh's  Case,  1  V.  «fe  B.  507 ;  Minet  v.  Hyde,  2  Bro.  Cli.  603  ;  Parsons  v. 
Dunne,  Belt's  Supp.  Ves.  276.  An  infant  cannot  consent.  Stubbs  v.  Gar- 
gan,  2  Beav.  596 ;  Abraham  v.  Newcombe,  12  Sim.  566,  overruling  Gullia 
V.  Gullin,  7  Sim.  236 ;  Udell  v.  Kenney,  3  Cow.  590 ;  Phillips  v.  Hessell, 
10  Humph.  197  ;  Ex  parte  Warfield,  11  Gill  &  J.  23.  Xor  can  the  consent 
be  given  until  the  amount  of  the  fund  is  known.  Edmunds  v.  Townshend, 
1  Anst.  93  ;  Jernegan  v.  Baxter,  6  Mad.  32 ;  Sperling  v.  Rochfort,  8  Ves. 
180 ;  Packer  v.  Packer,  1  Coll.  92 ;  Watson  v.  Marshall,  17  Beav.  363 ; 
In  re  Bendyshe,  3  Jur.  (n.  s.)  727.  But  if  a  married  woman  stands  by  and 
assents  to  a  sale  by  her  husband,  she  will  be  estopped  to  claim  a  settlement. 
Wright  V.  Arnold,  14  B.  Mon.  638;  Smith  v.  Atwood,  14  Ga.  402.  The 
wife  cannot  consent  to  the  transfer  of  any  interest  in  reversion  or  remainder 
until  they  become  possessory.     Socket  v.  Wray,  2  Atk.  6,  n. 


§§  629-631.]  RIGHT   TO    A    SETTLEMENT.  219 

shall  be  made  if  the  fund  is  in  court,  but  slie  must  be  examined 
in  open  court.^  If  suit  is  commenced,  neither  the  trustee  nor 
executor,  holding  the  equitable  interests  of  the  wife,  can  pay 
them  over  to  the  husband,  until  it  is  finally  determined  whether 
a  settlement  shall  be  made.^ 

§  631.  In  practice  courts  of  equity  proceed  upon  principles 
of  their  own,  and  settle  all  the  property  of  a  ward  of  the  court 
upon  herself,  if  a  man  marries  her  without  permission,  and 
thereby  commits  a  contempt  of  the  court.  In  such  cases  the 
husband,  and  his  creditors  and  assignees,  will  be  restrained 
from  interfering  with  the  property,  either  at  kw  or  in  equity .^ 
So  if  a  husband  has  abandoned  his  wife,  or  maltreats  and  abuses 
her,  the  court  may  interfere  and  settle  all  the  wife's  chases  in 
action,  not  reduced  to  possession,  upon  her  for  her  support ; 
although  no  suit  is  pending  concerning  it,  and  it  is  not  in  court, 
and  although  it  may  not  even  be  within  the  jurisdiction  of  the 
court.*  It  is  said  further,  that  if  the  husband  is  entirely  insol- 
vent, and  the  wife  is  without  means  of  support,  she  may  main- 
tain a  bill  against  him,  and  his  creditors  and  assignees,  to 
restrain  them  from  getting  possession  of  her  choses  in  action  in 
a  suit  at  law,  until  she  can  obtain  an  adequate  provision  for 
herself  out  of  her  property.^  The  court  can  give  relief  if  the 
parties  are  within  its  jurisdiction,  although  the  property  may  be 
in  another  jurisdiction.'' 

'  Ibid. 

'  Macauley  v.  Phillips,  4  Vos.  18 ;  Murray  v.  Elibank,  10  Ves.  90  ; 
Delagarde  v.  Lainpriere,  0  Beav.  'dii;  Crook  v.  Turpiii,  10  B.  Mon.  243. 

8  Eyre  v.  Sbaftsbury,  2  P.  Wins.  108,  121,  124;  Kenney  i'.  Udull,  5 
John.  Ch.  464;  3  Cow.  591;  Van  Duzer  v.  Van  Duzer,  6  Paige,  366; 
Ilehnes  v.  Franciscus,  2  Bland,  545 ;  Chambers  v.  Perry,  17  Ala.  726 ;  Van 
Epps  I'.  Van  Deusen,  4  Paige,  65  ;  Lavton  v.  Layton,  1  Sni.  &  Gif.  179. 

*  Ibid.  ;  Renwick  v.  llenwick,  10  Paige,  421  ;  Martin  v.  Martin,  1  IIofiF. 
462 ;  Ilaviland  v.  flyers,  6  John.  Ch.  25,  178 ;  Recs  v.  Waters,  9  Watts, 
90. 

=  Ibid.  ;  Bell  v.  Bell,  1  Kelly,  627  ;  Guild  v.  Guild,  16  Ala.  122. 

«  Guild  V.  Guild,  16  Ala.  122. 


220  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

§  632.  This  equity  of  a  settlement  may  be  enforced  against  the 
husband,  and  all  persons  claiming  under  him,  as  his  assignees 
in  bankruptcy,  or  under  a  general  assignment  for  creditors.^ 
Even  if  the  husband  makes  an  assignment  for  a  valuable  con- 
sideration, the  equity  of  the  wife  will  prevail  over  it.^  The 
wife's  equity  is  paramount  to  all  rights  of  set-off  against  the 
husband.^ 

§  633.  The  wife's  right  to  a  settlement  extends  to  all  her 
property,  legal  or  equitable,  where  it  is  necessary  for  her  hus- 
band, or  those  claiming  under  him,  to  come  into  court  for  its 
recovery ;  *  and  to  all  her  interests,  whether  absolute  and  in 

^  Jewson  V.  Moulson,  2  Atk.  420  ;  Burdon  v.  Dean,  2  Ves.  Jr.  607  ; 
Pryor  v.  Hill,  i  Bro.  Ch.  138 ;  Oswell  v.  Probert,  2  Ves.  Jr.  680  ;  Sturgis 
V.  Champneys,  5  M.  &  Cr.  97  ;  Gassett  v.  Grout,  4  Met.  486  ;  Davis  v. 
Newton,  6  Met.  537  ;  Page  v.  Estes,  19  Pick.  269  ;  Kenney  v.  Udall,  5  John. 
Ch.  464  ;  3  Cow.  691  ;  Haviland  v.  Myers,  6  John.  Ch.  25  ;  Mumford  v. 
Murray,  1  Paige,  620;  Van  Epps  v.  Van  Deusen,  4  Paige,  65;  Phillips 
r.  Hassell,  10  Humph.  197  ;  Moore  v.  Moore,  14  B.  Mon.  259;  Elliott  v. 
Waring,  5  Mon.  338  ;  Bennett  v.  Dillingham,  2  Dana,  436  ;  Thomas  v.  Ken- 
nedy, 4  B.  Mon.  235  ;  Bowling  v.  Winslow,  5  B.  Mon.  29  ;  Hord  v.  Hord, 
5  B.  Mon.  81  ;  Athey  v.  Knotts,  6  B.  Mon.  24  ;  Bowling  v.  Bowling,  6  B. 
Mon.  31  ;  Bell  v.  Bell,  1  Kelly,  637  ;  Napier  v.  Howard,  1  Kelly,  193  ; 
Andrew  v.  Jones,  10  Ala.  401  ;  Browning  v.  Headley,  2  Rob.  (Va.)  342  ; 
Sherrard  v.  Carlisle,  1  Pat.  &  Heath.  12 ;  Durr  v.  Bowyer,  2  McCord,  Ch. 
368;  Heath  v.  Heath,  2  Hill,  Ch.  100;  Perryclear  v.  Jacobs,  2  Hill,  Ch. 
504;  Riley,  Ch.  47  ;  Duvall  v.  Farmers'  Bank,  4  Gill  &  J.  283  ;  State  v. 
Reigart,  1  Gill,  3  ;  Dunkley  v.  Dunkley,  2  De  G.,  M.  &  G.  390 ;  Napier  v. 
Napier,  1  Dr.  &  W.  410;  Crook  v.  Turpin,  10  B.  Mon  244  ;  Ball  v.  Mont- 
gomery, 4  Bro.  Ch.  338;  Brown  v.  Clark,  3  Ves.  166;  Freeman  v.  Pars- 
ley, 3  Ves.  421. 

*  Macauley  v.  Phillips,  4  Ves.  19;  Scott  v.  Spashett,  3  Mae.  &  G.  599 ; 
Marshal  v.  Gibbings,  4  Ir.  Ch.  276. 

3  Hall  V.  Hill,  1  Dr.  &  W.  109;  Carr  v.  Taylor,  10  Ves.  574;  Ex  parte 
Blagden,  2  Rose,  294;  Ex  parte  O'Farrall,  1  G.  &  J.  347;  McMahon  v. 
Burchall,  3  Hare,  97;  5  Hare,  335;  Reeve  v.  Rocher,  1  De  G.  &  S.  626; 
Lee  V.  Egreraont,  5  De  G.  &  Sm.  348;  McCormick  v.  Garnett,  2  Sm.  & 
Gif.'37. 

*  Milneru.  Colmer,  2  P.  Wms.  639;  Sturgis  v.  Champneys,  5  M.  &  C. 
97;  Bosvill  v.  Brander,  1  P.  Wms.  458;  Oswell  v.  Probert,  2  Ves.  Jr.  680; 


§§  632,  633.]  RIGHT   TO    A    SETTLEMENT.  221 

fee,  or  for  life,^  or  whether  legal  or  equitable  ;^  or  to  a  trust 
for  a  term,^  or  to  the  estate  of  the  wife  as  tenant  in  tail  in  pos- 
session,* or  to  the  wife's  interest  as  a  mortgagee,^  or  to  an 
equity  of  redemption,*^  or  to  her  interests  in  chattels  real, 
whether  legal  or  equitable,"  or  to  her  contingent  interests.^ 
She  is  also  entitled  to  a  settlement  in  estates  that  come  to  her 
after  marriage,  as  well  as  before.^  But  she  cannot  have  a 
settlement  out  of  her  interests  in  remainder  or  in  reversion, 
until  they  fall  into   possession   or  become  possessory. ^*^     The 

Brown  i'.  Clark,  3  Ves.  106;  Freeman  v.  Parsley,  3  Ves.  421;  iNIitford  r. 
Mitford,  9  Ves.  87. 

^  Ibid. ;  Burdon  v.  Dean,  2  Ves.  Jr.  607  ;  Ball  v.  Montgomery,  4  Bro. 
Ch.  338;  Wright  v.  Morley,  11  Ves.  12;  Pryor  v.  Hill,  4  Bro.  Ch'  139. 

2  Ibid.;  Wortham  v.  Pemberton,  1  De  G.  &  Sm.  644. 

8  Macaiiley  v.  Phillips,  4  Ves.  19;  Turner's  Case,  1  Ch.  Ca.  307;  1 
Vern.  7;  Sanders  v.  Page,  3  Ch.  R.  223;  Hanson  v.  Keating,  4  Hare,  1; 
Pitt  V.  Hunt,  1  Vern.  18;  Jewson  v.  Moulson,  2  Atk.  417;  Wortham  v. 
Pemberton,  1  De  G.  «&  Sm.  644;  Durham  v.  Crackles,  8  Jur.  (n.  s.)  1174; 
Gleaves  v.  Paine,  1  De  G.,  J.  &  Sm.  87;  Smith  v.  Matthews,  3  De  G.,  F. 
&  J.  139. 

*  Worlham  v.  Pemberton,  1  De  G.  &  Sm.  644. 

6  Ibid. ;  Bates  v.  Dandy,  2  Atk.  207;  Packer  v.  Wyndham,  Pr.  Ch.  418; 
Walter  v.  Saunders,  1  Eq.  Ca.  Ab.  58 ;  Inclcdon  v.  Northcote,  3  Atk.  335 ; 
Mitford  V.  Mitford,  9  Ves.  99;  Hore  v.  Becher,  12  Sim.  465;  Jones  v. 
Gibl)ons,  9  Ves.  407;  Rees  v.  Keith,  11  Sim.  338;  Duncombe  v.  Green- 
acre,  6  Jur.  (x.  s.)  987 ;  7  Jur.  (n.  s.)  178. 

«  Clark  V.  Cook,  3  De  G.  &  Sm.  333 ;  Hatchell  v.  Eggleso,  1  Ir.  Ch. 
215  ;  Hill  V.  Edmonds,  5  De  G.  &  Sm.  603. 

^  Roups  V.  Atkinson,  Bunb.  162  ;  Mitford  v.  Mitford,  9  Ves.  99;  Packer 
V.  Wyixlham,  Pr.  Ch.  418;  Franco  v.  Franco,  4  Ves.  528;  Bullock  j;. 
Knight,  1  Ch.  Ca.  266 ;  Sanders  v.  Page,  3  Ch.  R.  223 ;  Macauley  v.  Phil- 
lips, 4  Ves.  19  ;  Wike's  Case,  Lane,  54;  Roll.  Ab.  343  ;  Jewson  v.  Moul- 
son, 2  Atk.  421;  Inclcdon  v.  Nortiicote,  3  Atk.  435;  Clark  v.  Burgh,  2 
Coll.  221  ;  Sturgis  v.  Champncys,  5  M.  &  C.  97  ;  Duberly  v.  Day,  16 
Beav.  33;  Hanson  v.  Keating,  4  Hare,  1;  Wortham  i>.  Pemberton,  1  De 
G.  &  Sm.  644;  Robertson  v.  Norris,  11  Q.  B.  916. 

»  Donne  v.  Hart,  2  R.  &  M.  360. 

^  Barrow  v.  Barrow,  18  Beav.  529. 

'»  Socket  V.  Wray,  2  Atk.  6,  n.  ;  Frazer  v.  Bailie,  1  Bro.  Ch.  518; 
Richards  r.  Chambers,  10  Ves.  508;  WooUands  v.  Crowcher,  12  Ves.  175; 
Ritchie  v.  Broadbent,  2  J.  &  W.  456 ;  Packard  v.  Roberts,  3  Mad.  384  ; 
Whittle  V.  Henning,  2  Phil.  731;  Greedy  v.  Lavender,  13  Beav.  62;  Osborn 


222  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

amount  of  the  property  is  not  material,^  though  it  was  once 
said  that  the  court  would  not  make  a  settlement  of  property  of 
less  value  than  £200.^  Nor  will  her  living  separate  from  her 
husband  defeat  her  right  to  a  settlement.^ 

§  634.  If  a  husband  is  solvent,  and  is  living  with  his  wife 
and  maintaining  her  as  well  as  he  can,  he  is  entitled  to  the 
income  of  her  life-estates,  and  no  settlement  can  be  made."* 
If,  however,  he  deserts  her,  or  she  is  divorced  for  his  miscon- 
duct, she  may  receive  the  whole  or  a  part  of  the  income  of  her 
life-estates  for  her  support.^     So  if  the  husband  is  a  bankrupt, 

V.  Morgan,  9  Hare,  432;  8  Eng.  L.  &  Eq.  192;  Taylor  v.  Austen,  9  Dr. 
459 ;  Marshall  v.  Fowler,  15  Eng.  L.  &  Eq.  430;  Duberly  v.  Day,  16  Beav. 
33;  Cunningham  v.  Antrobus,  16  Sim.  436;  Brandon  v.  Woodthoi-pe,  10 
Beav.  463 ;  Rogers  v.  Acaster,  14  Beav.  445,  overruling  Hall  v.  Hugonin, 
14  Sim.  595;  Browning  v.  Headley,  2  Rob.  (Va.)  340;  Moore  v.  Thornton, 
7  Grat.  99  ;  Terry  v.  Branson,  1  Rich.  Eq.  78 ;  Reese  v.  Holmes,  5  Rich. 
Eq.  531;  Sale  v.  Saunders,  24  Miss.  24;  Goodwin  v.  Moore,  4  Humph. 
221 ;  Caplinger  v.  Sullivan,  2  Humph.  548.  In  Pennsylvania,  Kentucky, 
and  North  Carolina,  however,  the  English  rule  is  not  followed ;  but  a  hus- 
band may  assign  and  convey  vested  remainders  and  reversions  to  his  wife. 
Knight  V.  Leak,  2  Dev.  &  Bat.  1-33;  Howell  v.  Howell,  3  Ired.  Eq.  528; 
Weeks  v.  Weeks,  5  Ired.  Eq.  Ill;  Merriweather  v.  Booker,  5  Lit.  254; 
Davenport  v.  Prewett,  9  B.  Mori,  95 ;  Jackson  v.  Sublett,  10  B.  Mon.  469 ; 
Turner  v.  Davis,  1  B.  Mon.  151  ;  Siter's  Case,  4  Rawle,  461 ;  Smilie's  Est. 
22  Penn.  St.  130 ;  Woelper's  App.  2  Barr,  71 ;  Webb's  App.  21  Penn.  St. 
248.     And  see  Scott  v.  James,  3  How.  (Miss.)  307. 

"1  In  re  Kincaird's  Trusts,  17  Eng.  L.  &  Eq.  396  ;  1  Dr.  326  ;  Cutler's 
Trusts,  14  Beav.  224;  iZe  Morriman's  Trust,  10  Weekly  Rep.  334;  Roberts 
V.  CoUott,  6  Sm.  &  Gif.  138. 

*  Foden  v.  Finney,  4  Russ.  428 ;  March  v.  Head,  3  Atk.  721;  Bourdillon 
V.  Adair,  3  Bro.  Ch.  237 ;  Elworthy  v.  Wickstead,  1  J.  &  W.  69. 

8  Eedes  v.  Eedes,  11  Sim.  569  ;  Greedy  v.  Lavender,  13  Beav.  62  ;  Carter 
V.  Carter,  14  Sm.  &  Mar.  59.  But  see  Carr  v.  Estabrooke,  4  Ves.  146  ; 
Ball  V.  Montgomery,  2  Ves.  Jr.  191;  Watkyns  j;.  Watkyns,  2  Atk.  97;  In 
re  Lewin's  Trusts,  20  Beav.  378;  Ball  v.  Coutts,  1  V.  &  B.  302;  In  re  Wal- 
ker, LI.  &  Goo.  Sugd.  299. 

*  Bullock  V.  Menzies,  4  Ves.  798 ;  Be  Duffy's  Trust,  28  Beav.  386  ; 
Vaughan  v.  Buck,  13  Sim.  404. 

5  Barrow  v.  Barrow,  5  De  G.,  M.  &  G.  782;  Tidd  v.  Lister,  3  De  G., 
M.  &  G.  870;  Wright  v.  Morley,  11  Ves.  12;  Allerton  v.  Knowell,  4  Ves. 


§§  633-635.]  RIGHT   TO    A    SETTLEMENT.  223 

and  the  wife  is  without  means,  the  court  will  enforce  a  settle- 
ment out  of  the  income  of  a  ///e-estate  as  against  the  assignee.^ 
If  a  husband,  while  living  with  and  maintaining  his  wife,  as- 
signs the  income  of  her  life-estates  for  a  valuable  consideration, 
she  can  have  no  settlement,  as  the  assignment  may  have  been 
made  to  enable  him  to  support  her.^  But  a  fraudulent  convey- 
ance will  not  defeat  her  right.^  If  the  wife  already  has  an 
adequate  provision,  a  settlement  will  not  be  made  out  of  her 
life-estate  ;  *  nor  will  it  be  made  if  she  is  living  in  adultery,^  or 
refuses  to  accompany  her  husband  when  he  removes  from  place 
to  place,  in  the  performance  of  the  duties  of  his  profession  or 
occupation.^  If  she  fraudulently  induce  a  purchaser  to  advance 
his  money  upon  a  purchase  of  her  interests,  a  settlement  will 
not  be  made.'^ 

§  635.  If,  however,  a  husband  has  already  made  a  settlement 
upon  his  wife,  he  will  not  be  required  to  make  another  on 
coming  into  court  to  reduce  her  property  to  possession.*^  A 
settlement,  however,  will  apply  prima  facie  only  to  the  property 
then  belonging  to  the  wife,  unless  by  the  terms  of  the  instru- 

799  ;  Oxenden  v.  Oxenden,  2  Vern.  493 ;  Williams  v.  Callow,  2  Vern.  572 ; 
Atherton  v.  Mowell,  1  Cox,  229;  Eedes  v.  Eedes,  11  Sim.  569. 

'  Vaughan  v.  Buck,  1  Sim.  (n.  s.)  28-1;  Squires  v.  Ashford,  23  Beav. 
132;  Barnes  r.  Robinson,  1  N.  R.  257;  Elliott  v.  Cordell,  5  Mad.  U9  ; 
Lunib  I'.  Milnes,  5  Ves.  517;  Brown  v.  Clark,  3  Ves.  166  ;  Jacob  v.  Ainyatt, 
1  Mad.  376,  n.;  Sturgis  t'.  Chain[)neys,  5  M.  &  Cr.  97;  Gilchrist  v.  Cator, 
1  De  G.  &  Sm.  188 ;  Koober  v.  Sturgis,  22  Beav.  588. 

^  Tidd  V.  Lister,  10  Hare,  140;  3  De  G.,  M.  &  G.  857;  Duflfy's  Trust, 
28  Beav.  386. 

*  Colmer  v.  Colmer,  Mose.  113. 

*  Aquilar  v.  Aquilar,  5  Mad.  414. 

^  Ball  V.   Montgomery,  2  Ves.   Jr.   191 ;  Duncan  v.  Campbell,   12  Sim. 
616 ;  Alexander  v.  McCulloch,  2  Ves.  Jr.  192. 
«  Bullock  V.  Menzies,  4  Ves.  798. 
'  Lush's  Trusts,  L.  R.  4  Eq.  591 ;  Sharpe  v.  Toy,  L.  R.  4  Eq.  35. 

*  Druce  v.  Denison,  6  Ves.  395  ;  Carr  i'.  Taylor,  10  Ves.  579;  Garforth 
V.  Bradley,  2  Ves.  677  ;  Mitlbrd  i\  Mitford,  9  Ves.  96  ;  Martin  v.  Martin,  1 
Comst.  473. 


224  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

ment  it  embraces  her  subsequently  acquired  property.^  The 
court  may,  however,  in  particular  circumstances,  decline  to 
interfere  with  marital  rights.^  If  in  terms  it  does  not  embrace 
subsequent  property,  he  will  be  required  to  make  an  additional 
settlement.^  If  a  settlement  in  terms  states,  that  it  is  in  con- 
sideration of  his  wife's  fortune,  it  will  entitle  him  to  her  present 
fortune,  however  inadequate  the  settlement  may  be,  if  made 
before  marriage ;  ^  but  if  it  is  inadequate,  it  will  be  an  addi- 
tional reason  for  requiring  another  settlement,  upon  the  acces- 
sion of  additional  property  to  her.^  But  even  an  adequate 
settlement,  made  after  marriage,  will  not  bar  her  equity  to  an 
additional  settlement.^  It  is  not  important  that  the  settlement 
should  refer  to  the  present  fortune  of  the  wife :  it  will  be  pre- 
sumed to  embrace  itJ  If  the  settlement  is  made  in  consider- 
ation of  a  part  of  the  wife's  equitable  property,  it  will  not  be 
extended  beyond  its  express  terms.^  By  these  settlements, 
the  husband  becomes  the  purchaser  of  so  much  of  the  wife's 
property  as  they  embrace  ;  but  they  simply  give  him  the  power 
to  reduce  the  equitable  and  legal  choses  in  action  to  possession : 
if  he  dies  without  doing  so,  she  takes  them  by  survivorship.^ 

'  Ibid.;  Barrow  v.  Barrow,  5  De  G..  M.  &  G.  782  ;  18  Beav.  529;  Matter 
of  Beresford,  1  Des.  263.  The  fact  that  a  woman  lives  separate  from  her 
husband  will  not  entitle  her  to  an  additional  settlement,  if  the  first  settle- 
ment in  terms  embraced  her  future  fortune.  Re  Erskine's  Trusts,  1  K.  & 
J.  302. 

^  Gracommette  v.  Prodgers,  L.  R.  14  Eq.  253. 

8  Ibid. ;  Spirrett  v.  Willows,  3  De  G.,  J.  &  S.  293;  L.  R.  1  Ch.  520. 

<  Lanoy  v.  Athol,  2  Atk.  448;  3  P.  Wms.  199,  n.;  Adams  v.  Cole,  2  Atk. 
449,  n.;  Forr.  168;  Brett  v.  Forcer,  3  Atk.  405. 

«  March  v.  Head,  3  Atk.  720  ;  Tomkyns  v.  Ladbroke,  2  Ves.595;  Stack- 
pole  V.  Beaumont,  3  Ves.  98 ;  Elibank  v.  Montolieu,  5  Ves.  737. 

«  Dunkley  v.  Dunkley,  2  De  G.,  M.  &  G.  390;  Matter  of  Beresford,  1 
Des.  263. 

'  Blois  V.  Hereford,  2  Vern.  502 ;  and  see  Salway  v.  Salway,  Amb.  602. 

»  Cleland  v,  Cleland,  Pr.  Ch.  63;  Burdon  v.  Dean,  2  Ves.  jr.  607. 

»  Rudyard  v.  Neirin,  Pr.  Ch.  209;  Lister  v.  Lister,  2  Vern.  68  ;  Mitford 
V.  Mitford,  9  Ves.  96 ;  Salway  v.  Salway,  Amb.  692  ;  Hcaton  v.  Hassell, 
4  Vin.  Ab.  40. 


§§  635,  636.]  RIGHT   TO    A   SETTLExMENT.  225 

§  636.  The  amount  that  will  be  settled  upon  the  wife  is  sub- 
ject to  the  sound  discretion  of  the  court,  acting  upon  all  the 
circumstances,  such  as  the  solvency  or  insolvency  of  the  hus- 
band, the  amount  of  the  wife's  property  he  has  already  re- 
ceived, the  amount  that  remains,  their  position  in  society,  and 
the  fact  whether  a  settlement  has  already  been  made  upon  the 
wife,  the  conduct  of  the  husband,  and  whether  he  lives  with 
her  and  maintains  her  as  well  as  he  can.  There  is  no  general 
rule.  In  some  cases  one-half  the  property  has  been  settled  on 
her,  and  the  other  half  allowed  to  go  to  his  assignees.  In 
other  cases,  and  especially  where  there  has  been  misconduct 
on  the  part  of  the  husband,  the  whole  sum  has  been  settled  ; 
and  the  court  will  be  inclined  to  do  this,  if  the  husband  has 
already  expended  a  large  part  of  his  wife's  fortune,  or  if  the 
sum  remaining  is  barely  sufficient  to  support  the  wife  and  chil- 
dren,i  or  if  the  husband  has  married  a  ward  of  the  court  with- 
out permission.^ 

'  Jewson  V.  Moulson,  2  Atk.  423;  Worrall  v.  Marlar,  1  Cox,  153  ;  1 
Dick.  647;  Brown  v.  Clark,  3  Ves.  166;  Bagshaw  v.  Winter,  5  De  G.  & 
Sm.  466  ;  Dunkley  v.  Dunkley,  2  De  G.,  M.  &  G.  396 ;  Green  v.  Otte,  1  S. 
&  S.  250;  Napier  v.  Napier,  1  Dr.  &  VV.  407;  Aubrey  v.  Brown,  4  AV. 
Rob.  425 ;  Coster  v.  Coster,  9  Sim.  597  ;  Ex  parte  Pugh,  1  Dr.  202 ; 
Vaugban  v.  Buck,  1  Sim.  (n.  s.)  284;  Beresford  v.  Ilobson,  1  Mad.  362; 
Jacobs  V.  Amyatt,  1  Mad.  376;  Brett  v.  Greenwell,  3  Y.  &  Col.  Ex.  230; 
Gardner  v.  Marshall,  14  Sim.  575;  Francis  v.  Brooking,  19  Beav.  347; 
Scott  V.  Spashett,  3  Mac.  &  G.  599;  Marshall  v.  Fowler,  16  Beav.  249; 
Be  Kincaird's  Trusts,  1  Dr.  326;  In  re  Cutler,  14  Beav.  220;  Gent  v.  Har- 
ris,  10  Hare,  383;  Layton  v.  Layton,  1  Sm.  &  Gif.  179;  Walker  v.  Drury, 
17  Beav.  482;  Helms  v.  Franciscus,  2  Bland,  545;  Keniiey  v.  Udell,  5  John. 
Ch.  464;  3  Cow.  591  ;  Napier  r.  Howard,  3  Kelly,  205  ;  Bowling  v.  W^ins- 
low,  5  B.  Mon.  31;  Browning  v.  Headley,  2  Rob.  Va.  340;  Hall  v.  Hall. 
Md.  Ch.  283 ;  McVey  v.  Boggs,  3  Md.  Ch.  94 ;  Barron  v.  Barron,  24  Yt. 
375 ;  Benett  v.  Oliver,  7  Gill  &  J.  191. 

-  Ante,  §  631 ;  Stackpole  v.  Beaumont,  3  Ves.  89  ;  Stevens  v.  Savage, 
1  Ves.  Jr.  154;  Chassaing  v.  Parsonage,  5  Ves.  15;  Millett  v.  Rowse,  7 
Ves.  419;  Bathurst  v.  Murray,  8  Ves.  74;  Wells  v.  Price,  5  Ves.  898; 
Winch  V.  James,  4  Ves.  386  ;  Priestly  v.  Lamb,  6  Ves.  421 ;  Halsey  r.  Ilal- 
sey,  9  Ves.  471;  Pearce  v.  Crutchfield,  16  Ves.  48;  In  re  Healey,  1  C.  & 
L.  393  ;  In  re  Walker,  LI.  &  G.  Sogd.  325;  Hodgens  v.  Hodgens,  11 
Bligh  (xv.  s.),  52;  4  C.  &  F.  323;  Birkett  v.  Hibbert,  3  My.  &  Cr.  227; 

VOL.  II.  15 


226  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

§  637.  If  a  husband  refuses  to  make  a  settlement  upon  his 
wife,  the  court  will  give  him  no  aid  in  reducing  her  choses  in 
action,  whether  legal  or  equitable,  to  possession  ;  and  the  court 
will  retain  the  capital,  if  within  its  jurisdiction,  so  that  the 
wife  may  take  the  same  by  survivorship.  But  his  marital  rights 
will  not  be  otherwise  taken  away,  and  he  will  be  allowed  to 
receive  the  income,  so  long  as  he  lives  with  and  maintains 
her.i  Where,  however,  a  husband  has  deserted  his  wife  and 
left  her  unprovided  for ;  ^  or  where  he  has  received  a  large  part 
of  her  fortune,  and  refuses  to  make  any  settlement ;  ^  or  where 
he  is  a  lunatic,*  and  incapable  of  taking  care  of  her;  or  where 
he  is  a  bankrupt  or  totally  insolvent,^  —  the  court  will  order  the 
income  to  be  paid  to. her. 

§  638.  The  right  to  a  settlement  and  the  survivorship  of  the 
wife  are  two  different  things ;  although  they  both  depend  upon 
the  fact  whether  the  husband  has  reduced  the  wife's  choses  in 
action  to  possession.  A  settlement  is  ordered  by  the  court 
for  the  present  benefit  of  the  wife,  where  the  husband  has  not 
actually  received  the  property.  Survivorship  of  the  wife  is  her 
right  to  her  choses  in  action  at  the  death  of  her  husband,  in  case 
he  has  not  already  reduced  them  to  possession :  the  one  is  the 
act  of  the  court ;  the  other  is  operation  of  law. 

§  639.  It  frequently  becomes  a  question  whether  a  wife's 
choses  in  action,  legal  or  equitable,  have  been  so  dealt  with  by 
her  husband  as  to  be  reduced  to  his  legal  possession,  in  such 

Like  V.  Beresford,  3  Ves.  506 ;  Ball  i;.  Coutts,  1  V.  &  B.  305.     See  Ben- 
nett V.  Biddies,  10  Jur.  534. 

'  Sleech  v.  Thorrington,  2  Ves.  562;  Oxenden  v.  Oxenden,  2  Ves.  493; 
Williams  v.  Callow,  2  Vern.  751;  Atcheson  v.  Atcheson,  11  Beav.  485; 
Att'y-Gen.  v.  Bacchus,  9  Price,  30 ;  11  Price,  547 ;  Grute  v.  Locroft,  Cro. 
Eliz.  287. 

2  Ibid.;  Watkins  v.  Watkins,  2  Atk.  96;  Peters  v.  Grote,  7  Sim.  238  ;' 
Rishton  v.  Cobb,  9  Sim.  620. 

3  Bond  V.  Simmonds,  3  Atk.  21.       "  Stead  v.  CuUey,  2  My.  &  K.  52. 
»  Ante,  §§  634-636. 


§§  637-639.]  REDUCTION   TO    POSSESSION.  227 

manner  as  to  bar  her  right  to  a  settlement,  or  to  destroy  her 
right  of  survivorship  in  the  property  in  case  he  dies.  There 
is  no  difference  in  the  rule  between  legal  and  equitable  prop- 
erty.^ If  the  husband  has  not  done  some  act  to  vest  the  legal 
property  in  himself,  the  wife  can  claim  a  settlement,  or  will 
take  it  as  survivor.^  An  actual  payment  or  delivery  by  the 
legal  holder  to  the  husband  himself,  or  to  his  assignee,  or  other 
person  appointed  or  authorized  to  receive  the  fund,  will  be  a 
reduction  to  possession  ;  ^  but  if  the  assignee  has  not  actually 
received  the  property,  there  is  no  possession  that  effects  the 
rights  of  the  wife.*  The  husband  must,  in  all  cases,  do  some 
act  to  reduce  the  wife's  chases  to  possession.     The  mere  manual 

^  Twisden  v.  Wise,  1  Vern.  161;  Hornsby  v.  Lee,  2  Mad.  16;  Purdew 
V.  Jackson,  1  Russ.  1 ;  Honner  v.  Morton,  3  Russ.  65. 

"  Pike  V.  Collins,  33  Me.  43 ;  Parsons  v.  Parsons,  9  N.  H.  309 ;  Poor 
V.  Hazleton,  15  N.  H.  568 ;  Legg  v.  Legg,  8  Mass.  99 ;  Stanwood  v.  Stan- 
wood,  17  Mass.  57  ;  Hayward  v.  Hayward,  20  Pick.  517  ;  Dunn  v.  Sargeant, 
101  Mass.  336;  Schuyler  r.  Hoyle,  5  John.'Ch.  196  ;  Searing  v.  Searing, 
9  Paige,  283;  Snowliill  v.  Snowhill,  1  Green,  Ch.  30;  Dare  v.  Allen,  1 
Green,  Ch.  419  ;  Krumbaar  v.  Burt,  2  Wash.  C.  C.  406  ;  Lodge  v.  Hamil- 
ton, 2  S.  &  R.  491  ;  Bohn  v.  Headly,  7  H.  &  J.  257  ;  Browning  v.  Headley, 
2  Rob.  (Va.)  340;  Revel  v.  Revel,  2  Dev.  &  B.  272 ;  Pickett  i'.  Everett,  11 
Mo.  568;  Clarke  v.  McCreary,  12  Sm.  &  M.  347;  Rice  v.  Thompson,  14 
B.  Mon.  379;  Killar  o.  Bedor,  5  B.  Mon.  573;  Whitehurst  v.  Ilarker,  2 
Ired.  Eq.  292 ;  Poindexter  v.  Blackburn,  1  Ii-ed.  Eq.  286 ;  Terry  v.  Brun- 
son,  1  Rich.  Eq.  78 ;  Sayre  v.  Flournoy,  3  Kelly,  541 ;  Bibb  v.  McKin- 
ley,  9  Port.  636.  Choscs  in  action  in  Connecticut,  accruing  to  a  wife 
during  coverture,  vest  immediately  in  the  husband,  and  do  not  survive  to 
the  wife  if  the  husband  dies,  even  though  he  has  done  nothing  to  reduce 
them  to  possession:  Griswold  v.  Penniman,  2  Conn.  564;  although  this  is 
now  altered  by  statute :  Edwards  v.  Sheridan,  24  Conn.  165  ;  Jennings  v. 
Davis,  31  Conn.  134;  Blound  v.  Bcstland,  5  Ves.  515  ;  Macauley  v.  Phillips, 
4  Ves.  17  ;  Fort  v.  Fort,  Forrest,  171. 

8  Dashellw.  Earle,  12  Ves.  473  ;  Ryland  v.  Smith,  1  M.  &  Cr.  53  ;  Glaister 
V.  Hewer,  8  Ves.  207  ;  Johnson  v.  Johnson,  1  J.  «&  W.  472  ;  Hanson  v. 
Miller,  8  Jur.  209. 

*  Ibid.;  Browning  »•  Headley,  2  Rob.  (Va.)  340;  Mathews  v.  Guess, 
2  Hill,  Eq.  63 ;  George  v.  Goldsby,  23  Ala.  333 ;  Arrington  v.  Yarborough, 
1  Jones,  Eq.  72 ;  Bugg  v.  Franklin,  4  Sneed,  129 ;  Lynn  i".  Bradley,  1  Met. 
(Ky.)  232  ;  Smith  v.  Atwood,  l.'J  Ga.  420  ;  State  v.  Robertson,  5  Harrinjiton, 
201 ;  Needles  v.  Needles,  7  Ohio  St.  432 ;  Ryan  v.  Spruill,  4  Jones,  Eq.  27. 


228  TRUSTEES   FOR   MARRIED   "WOMEN.         [CHAP.  XXII. 

possession  of  tliem  as  an  administrator,  executor,  or  trustee, 
will  not  be  enough,  unless  accompanied  by  some  act  manifest- 
ing an  intention  to  make  them  his  own,^  as  if  he  charges  a 
legacy  as  paid  to  him,  and  the  account  is  allowed,-  or  if  he 
expends  the  money  in  his  own  business,^  or  sells  the  property, 
or  takes  notes  in  his  own  name.*  A  mere  suit  in  the  name 
of  himself  and  wife  is  not  a  reduction  to  possession,^  nor  is  a 
bill  in  equity  for  a  division,^  nor  a  suit  for  a  distribution  ; "  nor 
is  a  judgment  or  decree  in  such  joint  suits  enough.^  There 
must  be  an  execution,  and  the  actual  delivery  of  the  property 
to  the  husband  or  his  agent.^  A  joint  receipt  is  not  suffi- 
cient ;  ^"^  so  a  joint  recognizance  for  a  wife's  legacy  is  not 
enough. ^^'  Mere  possession  of  notes,  bonds,  and  mortgages,  is 
not  enough;  ^^  if  the  money  is  received  by  virtue  of  agreements 
inconsistent  with  his  receiving  it  in  his  marital  right,  the  rights  of 
the  wife  will  not  be  barred. ^^     Where  a  husband  sold  his  wife's 

1  Wallace  v.  Taliaferro,  2  Call,  376  ;  Mayfield  v.  Clifton,  3  Stew.  375; 
Elms  V.  Hughes,  3  Des,  155 ;  Ross  v.  Morton,  10  Yerg.  190 ;  Kintzinger's 
Est.  2  Ash.  455  ;  Miller's  Est.  2  Ash.  223  ;  Gochenaur's  Est.  23  Penn.  St.  400. 

"  Pierce  v.  Thompson,  17  Pick.  391. 

3  Ellis  V.  Baldwin,  1  W.  &  S.  253. 

*  Wardlaw  v.  Gray,  2  Hill,  Eq.  644. 

6  Pike  V.  Collins,  33  Me.  43 ;  Thompson  i'.  Ellsworth,  1  Barb.  Ch.  624 ; 
Arnold  v.  Ruggles,  1  R.  I.  165  ;  Bell  v.  Bell,  1  Kelly,  637  ;  Knight  v.  Braw- 
neer,  14  Md.  1 ;  Hall  v.  McLain,  11  Humph.  425 ;  3  Sneed,  536  ;  Pierce  v. 
Thornley,  2  Sim.  167. 

^  Gregory  v.  Marks,  1  Rand.  355. 

'  Bennett  v.  Dillingham,  2  Dana,  436  ;  Short  v.  Moore,  10  Vt.  446  ;  Pro- 
bate Court  V.  Niles,  32  Vt.  775 ;  Lewis  v.  Price,  3  Rich.  Eq.  172. 

*  Pike  V.  Collins,  33  Me.  43  ;  Mason  v.  McNeill,  23  Ala.  201 ;  Nanney  v. 
Martin,  1  Eq.  Ca.  Ab.  68 ;  3  Atk.  726 ;  Forbes  v.  Phillips,  1  Ed.  502 ; 
Nightingale  v.  Lockman,  Fitzgib.  148 ;  Here  v.  Woufle,  2  B.  &  B.  424 ; 
Adams  v.  Lavender,  1  McCl.  &  Y.  41 ;  Re  Jenkins,  5  Russ.  183. 

^  Ibid. ;  Alexander  v.  Crittenden,  4  Allen,  342. 

i»  McDowell  V.  Potter,  8  Barr,  191 ;    Timbers  v.  Katz,  6  W.  &  S.  290. 

"  Lodge  V.  Hamilton,  2  S.  &  R.  491 ;  Hake  v.  Fink,  9  Watts,  336. 

'=  Hunter  v.  Hallett,  1  Edw.  Ch.  388;  Pickett  v.  Everett,  11  Mo.  568; 
Miller's  Est.  1  Ash.  330 ;  Barber  v.  Slade,  30  Vt.  191 ;  Hall  v.  Young,  37 
N.  H.  134  ;  Barron  v.  Barron,  24  Vt.  375  ;  Holmes  v.  Holmes,  28  Vt.  765. 

"  Barron  v.  Ban-on,  24  Vt.  375  ;  Durant  v.  Lalley,  3  Strob.  159  ;  Rogers 


§§  639,  640.]  KEDUCTION   TO   POSSESSION.  229 

ehoses  in  action,  and  invested  the  proceeds  in  other  securities, 
which  he  inclosed  in  an  envelop  and  marked  as  his  own  to  dis. 
pose  of,  it  was  held  to  he  a  perfect  reduction  to  possession. ^ 
Where  the  act  depends  upon  the  husljand's  intention  at  the 
time,  it  may  be  shown,  by  his  declarations  and  other  circum- 
stances, that  it  was  not  his  intention  to  reduce  the  property  to 
possession.^  If,  however,  the  husband  wishes  to  qualify  his 
acts,  and  show  that  he  did  not  reduce  the  ehoses  to  possession, 
the  evidence  must  be  demonstrative.^  If  the  ehoses  are  once 
reduced  to  possession,  no  words  of  the  husband  can  revive  the 
rights  of  the  wife,  or  defeat  the  rights  of  creditors.'* 

§  640.  The  receipt  of  interest  by  the  husband  due  on  a 
mortgage,  bond,  or  note  to  the  wife,  is  the  reduction  of  the 
money  received,  but  it  is  not  a  reduction  of  the  principal 
sum  due ;  ^  nor  is  the  collection  of  dividends  on  stocks  a 
reduction  of  the  stocks.  To  reduce  the  stocks  themselves 
to  possession,  they  must  be  transferred  into  the  name  of  the 
husband.*^  Part  payment  of  the  principal  of  a  note  to  the 
husband  is  not  a  reduction  to  possession  of  the  remainder 
due."^  A  note,  payable  to  a  married  woman,  may  be  indorsed 
and  transferred  by  tlie  husband,  and  the  signature  of  the 
wife  is  not  necessary.  Such  indorsement  and  transfer  of  a 
negotiable  instrument  is  a  reduction  to  possession  by  the  hus- 

V.  Bunipass,  4  Ired.  Eq.  385;  Savage  v.  Benliain,  17  Ala.  120;  Davis  v. 
Davis,  46  Penn.  St.  362  ;  Wall  v.  Tomlinsoii,  16  Ves.  413 ;  Ryland  v.  Smith, 
1  My.  &  Cr.  53;  Burnham  v.  Bennett,  2  Coll.  254;  Baker  v.  Hall,  12  Ves. 
497. 

1  Dunn  V.  Sargeant,  101  Mass.  336. 

"  Hind's  Est.  5  Whart.  138;  Gray's  Est.  1  Barr.  327;  Goehenaur's  Est. 
23  Penn.  St.  460;  IMcDowell  v.  Potter,  8  Barr,  191. 

«  Gray's  Estate,  1  Barr,  327 ;  Goehenaur's  Estate,  23  Penn.  St.  460. 

*  Nolen's  App.  23  Penn  St.  35. 

*  Hownian  v.  Corrie,  2  Vern.  190  ;  Hart  v.  Stephens,  6  Q.  B.  937  ; 
Stanwood  v.  Stanwood,  17  ]Mass.  57 ;  Burr  v,  Sherwood,  3  Brad.  Sur.  85. 

^  Arnold  v.  liuggles,  1  R.  I.  165. 

'  Nash  V.  Nash,  2  Mad.  133;  Schuyler  v.  Hoyle,  5  John.  Ch.  196. 


230  TRUSTEES    FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

band.^  An  agreement  to  sell  the  chose  is  not  a  reduction  ;  ^ 
nor  is  the  set-off  of  the  chose  against  the  husband's  debt,  no 
money  being  paid  or  receipts  given  ;  ^  nor  is  a  pledge  or  assign- 
ment of  it  as  collateral  security.^  If  a  wife's  real  estate  is  sold, 
and  notes  are  taken  in  the  name  of  the  husband,  they  become 
his  ;  or  if  notes  are  taken  in  the  name  of  the  wife,  the  husband 
may  collect  them  and  reduce  them  to  possession.^  The  money 
due  on  a  mortgage  to  the  wife  may  be  received  by  the  husband, 
and  a  court  of  equity  will  compel  her  to  discharge  it,  if  he  dies.^ 
The  reduction  must  be  complete  before  the  husband's  death ; 
mere  initiatory  steps,  which  have  not  resulted  in  the  actual 
receipt  of  the  money  by  the  husband  or  his  agents,  will  not  be 
sufficient.'^  And  although  his  debt  due  to  an  estate  in  which 
his  wife  has  a  legacy  may  be  set  off  against  the  legacy  during 

'  Scarpellini  v.  Acheson,  7  Q.  B.  864 ;  Gatens  v.  Madderly,  6  M.  &  W. 
428;  McNeilage  v.  Holloway,  1  B.  &  Aid.  218;  Sherrington  r.  Yates,  12 
M.  &  W.  855 ;  Mason  v.  Morgan,  2  Ad.  &  El.  30 ;  Evans  v.  Secrest,  3  Ind. 
545  ;  Wall  v.  Tomlinson,  16  Ves.  413  ;  Hemmingway  v.  Mathews,  10  Tex. 
207  ;  Tryon  v.  Sutton,  13  Cal.  490 ;  Wildman  v.  Wildman,  9  Ves.  174 ; 
Twisden  v.  Wise,  1  Vern.  161 ;  Ryland  v.  Smith,  1  M.  &  C.  53  ;  Stevens  v. 
Beals,  10  Cush.  291  ;  Garforth  v.  Bradey,  2  Ves.  Sr.  675  ;  Richards  r. 
Richards,  2  B.  «&  Ad.  447  ;  Hart  v.  Stephens,  6  Q.  B.  937  ;  Allen  v.  Wilkins, 
3  Allen,  322. 

"  Harwood  v.  Fisher,  1  Y.  &  Col.  Ex.  110. 

^  Harrison  v.  Andrews,  13  Sim.  595 ;  Carr  v.  Taylor,  10  Ves.  574.  A 
debt  due  to  an  estate  by  a  husband  may  be  set  off  against  a  legacy  to  his 
wife  from  the  same  estate.  Yoke  v.  Barnet,  1  Binn.  358  ;  Flory  v.  Becker, 
2  Barr,  471.  But  not  after  his  death.  Kreider  «;.  Boyer,  10  Watts,  58; 
Stout  V.  Levan,  3  Barr,  235. 

*  Latourette  v.  Williams,  1  Barb.  9  ;  Hartman  v.  Dowdel,  1  Rawle,  279  ; 
Titt  V.  Colwell,  31  Penn.  St.  228 ;  Siter's  Case,  4  Rawle,  468. 

*  Taggart  v.  Boldin,  10  Md.  104;  IMcCrory  v.  Foster,  1  lo.  271;  Pea- 
cock V.  Pembroke,  4  Md.  280;  Ramsdale  v.  Craighill,  9  Ohio,  199;  Dixon 
r.  Dixon,  18  Ohio,  113 ;  Talbot  v.  Dennis,  1  Cart.  471 ;  Casey  v.  Wiggin, 
8  Gray,  231 ;  Ellsworth  v.  Hinds,  5  Wis.  613  ;  Bartlett  v.  Janeway,  4  Sand. 
Ch.  396 ;  Barber  v.  Slade,  30  Vt.  191. 

«  Rees  r.  Keith,  11  Sim.  388 ;  Bosvill  r.  Brander,  1  P.  Wms.  458 ;  Bates 
V.  Dandy,  2  Atk.  208  ;  Siter  v.  McClanachan,  2  Grat.  280. 

'  Mason  v.  McNeill,  23  Ala.  201 ;  Donaldson  v.  West  Branch  Bank, 
1  Barr,  286. 


§§  640,  641.]  REDUCTION   TO    POSSESSION.  231 

his  life,^  it  cannot  be  after  his  death  ;  ^  nor  can  the  legacy  be 
applied  to  the  debt  of  the  husband  due  to  a  third  person.^ 

§  641.  In  some  of  the  United  States,  the  transfer,  assign- 
ment, or  release  of  a  chose  in  action,  in  which  the  wife  has  a 
present  interest,  is  such  an  act  of  ownership,  on  the  part  of  the 
husband,  that  it  will  bar  the  right  of  survivorship  in  the  wife, 
although  the  assignee  may  not  have  reduced  the  chose  to  actual 
possession.*  In  some  States,  the  wife's  choses  in  action  will 
not  pass  to  the  husband's  assignees  in  bankruptcy,  under  gen- 
eral words ;  ^  nor  by  a  voluntary  assignment  in  trnst  for  cred- 
itors.^ But  if  the  choses  are  specifically  named,  they  will  pass 
to  such  assignees,  whether  they  are  assignees  in  bankruptcy  or 
voluntary.^  But  it  is  said  that  assignees  in  bankruptcy  will 
take,  subject  to  the  wife's  right  of  survivorship,  if  they  do  not 
reduce  the  chose  to  actual  possession.^     A  fraudulent  assign- 

^  Yoke  V.  Bennett,  1  Binn.  358  ;  Flory  v.  Becker,  2  Barr,  471. 

*  Ibid.;  Kreider  v.  Boyer,  10  Watts,  58;  Stout  v.  Levan,  3  Barr, 
285. 

8  Frauenfeldt's  Est.  3  Whart.  415. 

*  Chandos  v.  Talbot,  2  P.  Wins.  601  ;  Bates  v.  Dandy,  2  Atk.  207  ; 
Hawkins  v.  Obin,  2  Atk.  549 ;  Parsons  v.  Parsons,  9  N.  H.  309 ;  Tucker 
V.  Gordon,  5  N.  H.  564;  Schuyler  v.  Hoyle,  5  John.  Ch.  196;  Tuttle  v. 
Fowler,  22  Conn.  58;  Snowhill  u.  Snowhill,  1  Green.  Ch.  30;  Thomas  v. 
Kelsoe,  7  Mon.  521;  Lowry  r.  Houston,  3  How.  (Miss.)  396;  Shunian  v. 
Reigart,  7  W.  &  S.  168 ;  Siter's  Case,  4  Rawle,  468 ;  Webb's  App.  21 
Penn.  St.  248;  Smilie's  Est.  22  Penn.  St.  130;  Hill  r.  Townsend,  24  Tex. 
575;  Manion  v.  Titsworth,  18  B.  Mon.  582. 

6  Eshelinan  v.  Shuman,  13  Penn.  St.  661. 

^  Skinner's  App.  5  Barr,  263;  Slayniaker  v.  Bank,  10  Barr,  373  ;  Wright 
V.  Rutter,  2  Ves.  Jr.  673. 

'  Richwine  v.  Keim,  1  Pa.  373 ;  Shuman  v.  Reigart,  7  W.  &  S.  168  ; 
Esheluian  v.  Shuman,  13  Penn.  St.  561;  Siter's  Case,  4  Rawle,  468 ;  Barnes 
V.  Pearson,  6  Ired.  Eq.  482. 

*  Van  Epps  v.  Van  Deusen,  4  Paige,  64;  Poor  v.  Hazleton,  16  N.  H. 
568;  Outealt  v.  Van  Winkle,  1  Green  Ch.  513;  Shay  «.  Sessaman,  10  Barr, 
434;  Krumbaar  iJ.  Burt,  2  Wash.  C.  C.  406;  Shaw  v.  :Mitchell,  Davis,  216; 
Purdew  v.  Jackson,  1  Russ.  1;  Hutchings  v.  Smith,  9  Sim.  137;  Elwym  v. 
Williams,  7  Jur.  338;  12  L.  J.  Ch.  440;  13  Sim.  309;  Ashby  v.  Ashby, 
1  Coll.  554 ;  Wilkinson  v.  Charlesworth,   10   Beav.  328 ;  Le  Vasseu.\  v. 


232  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

ment  of  his  wife's  rJioses,  as  after  desertion,  or  after  proceed- 
ings for  a  divorce  are  begun,  cannot  be  supported  ;^  nor  can  a 
voluntary  assigmnent  without  consideration.^ 

§  642.  In  some  States,  the  choses  in  action  of  the  wife  so  far 
Test  in  the  husband,  although  he  does  no  act  to  reduce  them  to 
possession,  that  creditors  may  attach  and  seize  them  on  execu- 
tion, or  by  the  trustee  process.^  But  if  the  husband  dies  before 
judgment,  his  wife  will  take  the  choses  by  survivorship.*  In 
other  States,  it  is  held  that  nothing  vests  in  the  husband  until 
he  has  elected  to  reduce  the  chose  in  action  to  possession,  and 
has  done  some  act  to  that  end  ;  and  that  creditors  cannot  reach 
such  choses  until  they  vest  in  the  husband ;  and  that  the  hus- 
band cannot  be  compelled  to  elect,  or  reduce  them  to  posses- 
sion.^ It  has  been  held,  that  the  right  is  so  far  personal  to  the 
husband  that  it  cannot  be  exercised  by  a  guardian  if  he  is 
insane.^ 

§  643.  When  the  necessary  steps  are  taken,  a  wife's  chose  is 
reduced  to  possession,  her  right  to  a  settlement  is  barred,  and 

Scratton,  14  Sim.  118;  Boston  v.  Boston,  13  Jur.  247;  16  Sim.  552; 
Macq.  Husb.  and  Wife,  54 ;  2  Spence,  Eq.  Jur.  476. 

1  Krupp  V.  Scholl,  10  Barr,  194  ;  Blenkinsop  v.  Blenkinsop,  1  De.  G.,  M. 
&  G.  495.     And  see  Tuttle  v.  Fowler,  22  Conn.  58. 

^  Wright  V.  Rutter,  2  Ves.  Jr.  673 ;  Burnett  v.  Kinnaston,  2  Vern.  401 ; 
Mitford  V.  Mitford,  9  Ves.  87;  Johnson  v.  Johnson,  1  J.  &  W.  472 ;  Jew- 
son  V.  Moulson,  2  Atk.  417 ;  Hartman  v.  Dowdel,  1  Rawle,  279. 

3  Wheeler  v.  Bowen,  20  Pick.  263;  Holbrook  v.  Waters,  19  Pick.  354; 
Vance  v.  McLaughlin,  8  Grat.  289 ;  Dodd  v.  Greiger,  2  Grat.  98;  James  v. 
Gibbs,  1  Pat.  &  H.  277. 

*  Strong  V.  Smith,  1  Met  476;  Hayward  v.  Hayward,  20  Pick.  517. 

^  Skinner's  App.  5  Barr,  263 ;  Sayre  v.  Flournoy,  3  Kelly,  541 ;  Den- 
nison  r.  Nigh,  2  Watts,  90;  Robinson  v.  Woelper,  1  Whart.  179;  Wheeler 
V.  Moore,  13  N.  H.  478;  Andrews  v.  Jones,  10  Ala.  400;  Coffin  v.  Morrill, 
2  Fost.  352;  Mollingen  v.  Vausmann,  45  Penn.  St.  522;  Stoner  v.  Com- 
monwealth, 16  Penn.  St.  387;  Nolen's  App.  23  Penn.  St.  37;  Peacock  v. 
Pembroke,  4  Md.  280  ;  Harris  v.  Taylor,  3  Sneed,  536  ;  Gallego  v.  Gallego, 
2  Brock.  287. 

^  Andover  v.  Merrimac  County,  37  N.  H.  437.  But  see  In  re  Jenkins, 
5  Russ.  183. 


§§  641-645.]         SETTLEMENT   TO    SEPARATE   USE.  233 

her  riglit  by  survivorship  is  destroyed,  as,  where  a  bond  is 
taken  from  an  executor  to  the  husband  alone  for  a  legacy  due 
the  wife,  with  or  without  judgment  on  the  bond,^  or  a  new 
security  is  taken  in  any  form  to  the  husband  for  the  old  secu- 
rity to  the  wife,^  or  a  receipt  is  given  by  the  husband  alone  for 
the  cJioses  of  the  wife,"  or  where  a  deed  is  made  of  the  wife's 
property  to  trustees,  in  trust  for  the  wife  and  her  children.'^ 

§  644.  If  a  note,  bond,  or  legacy  is  given  to  a  husband  and 
wife  jointly,  the  husband  can  collect  the  wliole  during  his  life, 
but  if  he  docs  not  reduce  them  to  possession,  they  survive  to 
his  wife  on  his  death.^  If  the  property  is  in  court,  a  settle- 
ment can  be  ordered ;  or  the  fund  can  be  reserved,  and  the. 
interest  paid  to  the  husband  during  his  life.^  In  case  of  the 
settlement  of  property  jointly  upon  husband  and  wife,  the  hus- 
band may  receive  the  entire  income  during  his  life,  and  his 
interests  may  be  seized  by  his  creditors,  and  they  pass  to  his 
assignees  in  bankruptcy,  although  the  instrument  of  settlement 
contains  provisions  attempting  to  avoid  such  a  result." 

§  645.  It  has  already  appeared,  that  a  wife  cannot  ask  for  a 
settlement  for  herself  alone,  without  including  her  cliildren  ;  ^ 

•  Stewart's  App.  3  W.  &  S.  47G ;  Yerby  v.  Lynch,  3  Grat.  -460;  De 
Witt  V.  Eldred,  4  AV.  &  S.  422. 

*  Searing  v.  Searing,  9  Paige,  283. 
'  Starke  v.  Starke,  2  Rich.  438. 

*  Siter's  Case,  4  Rawle,  464;  Hansen  v.  Miller,  8  Jur.  209. 

"  Pike  V.  Collins,  33  Me.  43 ;  Hayward  v.  Hayward,  20  Pick.  517 : 
Laprimandaye  v.  Teissier,  12  Beav,  20G;  Atcheson  v.  Atcbeson,  11  Beav. 
485. 

•  Ibid. 

^  Carson  v.  O'Bannon,  7  Rich.  Eq.  219  ;  Rivers  v.  Thayer,  7  Rich.  Eq. 
166. 

«  Murray  r.  Elibank,  10  Ves.  90;  1  Lead.  Ca.  Eq.  360;  Lloyd  v.  Wil- 
liams, 1  Mad.  450;  Groves  v.  Clark,  1  Keen,  132;  Napier  v.  Howard, 
3  Kelly,  193;  Udell  v.  Kenney,  3  Cow.  609;  Groverman  v.  Diffenderffer, 
1  Gill  &  J.  22 ;  Howard  v.  Moffatt,  2  John.  Ch.  206 ;  Andrews  v.  Jones, 
10  Ala.  401. 


234  TRUSTEES   FOR  MARRIED   WOMEN.         [CHAP.  XXII. 

but  this  is  a  personal  right,  and  the  children  cannot  ask  for  a 
.settlement  after  her  death.'  The  wife,  at  any  time  before  the 
settlement  is  actually  executed,  may  waive  it,  and  consent  in 
court  that  her  husband  may  take  the  property.^  In  some  cases 
it  was  held,  however,  that  the  equity  of  the  children  attached 
upon  the  filing  of  the  bill  or  petition  of  the  wife  ;  and  that,  if 
she  died  before  further  proceedings,  the  children  might  still  be 
protected.^  But,  in  the  later  cases,  it  has  been  held  that  the 
rights  of  the  children  to  have  the  settlement  attach  only  after 
decree  ;  and  that,  if  the  wife  dies  before  the  decree,  the  hus- 
band takes  all  by  survivorship  as  his  wife's  administrator.'^  If 
there  are  no  children,  the  order  or  decree  for  a  settlement  will 
.not  affect  the  husband's  rights,  if  the  wife  dies  before  the  exe- 
cution of  the  instrument ;  but  if  the  settlement  is  drawn  and 
approved  by  the  court,  it  will  control  the  property.^  Where 
there  are  no  children,  the  husband's  next  of  kin  will  take  the 
property,^  or  the  husband  himself.' 

1  Scriven  v.  Tapley,  2  Ed.  337  ;  Amb.  509 ;  Lloyd  v.  Williams,  1  Mad. 
450 ;  Martin  v.  Sherman,  2  Sand.  Ch :  341 ;  Barker  v.  Woods,  1  Sand.  Ch. 
129  ;  Bell  v.  Bell,  1  Kelly,  637. 

'^  Row  V.  Jackson,  2  Dick.  604 ;  Murray  v.  Elibank,  10  Yes.  84 ;  1  Lead. 
Ca.  Eq.  360,  notes ;  Martin  v.  Mitchell,  10  Ves.  89. 

'  Wallace  v.  Auldjo,  1  De  G.,  J.  &  Sm.  643 ;  Steinmetz  v.  Haltkin,  1  GI. 
&  J.  64;  Murray  w.  Elibank,  10  Ves.  84;  Groves  v.  Clark,  1  Keen,  132; 
Groves  v.  Perkins,  6  Sim.  584 ;  Lloyd  v.  Williams,  1  Mad.  450 ;  Mumford 
V.  Murray,  1  Paige,  621;  Helms  v.  Franciscus,  2  Bland,  581 ;  Hill  v.  Hill, 
3  Strob.  Eq.  94. 

■*  Delagarde  v.  Lampriere,  6  Beav.  344. 

^  Macauley  v.  Phillips,  4  Ves.  19. 

«  Carter  v.  Taggart,  1  De  G.,  M.  &  G.  286;  Bagshaw  v.  Winter,  5  De 
G.'&  Sm.  466. 

There  will  be  for  the  future  little  occasion  to  consider  settlements  in  the 
United  States,  since  the  statutes  settle  nearly  all  a  married  woman's  prop- 
erty upon  herself,  without  even  the  intervention  of  a  trustee.  It  may  happen, 
however,  that  questions  may  arise  in  relation  to  marriages  previous  to  the 
passage  of  the  acts  in  the  several  States;  or  the  property  may  come  to  the 
wife  in  some  manner  not  embraced  in  the  statutes,  so  that  a  husband's  com- 


'  Walsh  V.  Wason,  L.  R.  8  Ch.  482. 


§§  645,  646.]         SETTLEMENT   TO    SEPARATE   USE.  235 

§  646.  At  common  law,  a  husband  became  liable  for  his 
wife's  debt  contracted  before  marriage  ;  he  was  also  bound  to 
maintain  her  and  her  children,  and  was  entitled  to  the  enjoy- 
ment of  her  property.  In  equity  a  woman,  in  contemplation 
of  marriage,  might  contract  with  an  intended  husband  for  the 
continued  separate  use  and  control  of  a  certain  portion,  or  the 
whole  of  her  property. ^  These  agreements  were  sustained  in 
equity,  on  the  principle  that  a  person  may  waive  or  renounce  a 
valuable  right  if  he  pleases,  and  that  the  right  of  the  husband 
to  his  wife's  property  could  be  renounced  by  him,  as  it  was  one 
of  his  privileges.  Equity  also  ]»ermits  a  stranger  to  give  and 
settle  property  upon  a  married  woman  to  her  sole  and  separate 
use,  free  from  the  interference  and  control  of  the  husljand.^  It 
was  at  first  thought  to  he  an  infringement  upon  marital  rights 
for  a  stranger  to  confer  property  upon  a  wife,  inde})endent  of 
her  husband,  over  which  he  could  have  no  control,  and  in 
which  he  could  have  no  interest.     Equity  has  sustained  these 

mon-law  rights  may  still  extend  to  it.  Wriglit  v.  Brown,  44  Penn.  St.  224; 
Colvin  V.  Currier,  22  Barb.  387  ;  Haines  t'.  Ellis,  24  Penn.  St.  253 ;  Foster 
V.  Penn.  Ins.  Co.  34  Penn.  St.  134;  Yale  v.  Dederer,  18  N.  Y.  265;  22 
N.  Y.  450;  Ricben  v.  White,  43  Barb.  92;  Rider  v.  Hulse,  33  Barb.  264; 
24  N.  Y.  372.  It  has,  therefore,  been  necessary  to  refer  to  the  matter 
briefly.  In  a  few  years  this  branch  of  the  law  will  be  entirely  obsolete  in 
this  country. 

•  Parkes  v.  White,  11  Ves.  228;  2  Rop.  Hus.  and  Wife,  151. 

*  Anderson  v.  Anderson,  2  M.  &  R.  427 ;  Davies  v.  Thornycroft,  6  Sim. 
.420;  Tullett  v.  Armstrong,  1  Beav.   1 ;  4  M.  &  Cr.  390;  Scarborough  v. 

Borman,  1  Beav.  34;  4  My.  &  Cr.  377.  In  Massey  v.  Parker,  2  M.  &  K. 
174,  Lord  Cottenham  remarked,  that  property,  settled  to  the  separate  use 
of  an  unmarried  woman,  vested  in  her  husband  at  her  marriage,  and  a  few 
cases  in  America  have  seemed  to  countenance  the  remark.  Linds.ay  i'.  Har- 
rison, 3  Eng.  311;  Dick  v.  Pitchford,  1  Dev.  &  Bat.  Eq.  480;  Hamersley 
V.  Smith,  4  Whart.  126;  Miller  v.  Bingham,  1  Ired.  423;  Apple  v.  Allen, 
3  Jones,  Eq.  342  ;  Gully  i'.  Hall,  31  Miss.  20 ;  Bridges  v.  Wilkins,  3  Jones, 
Eq.  342.  But  the  great  body  of  American  cases  sustain  the  law,  as  estab- 
lished in  England  by  Tullett  v.  Armstrong,  1  Beav.  1  ;  4  M.  &  C.  377; 
Feai's  V.  Brooks,  12  Ga.  197;  Robert  v.  West.  15  Ga.  123  ;  Ni.x  v.  Bradley, 
6  Rich.  Eq.  43  ;  Fellows  v.  Tann,  9  Ala.  1003 ;  Shirley  v.  Shirley,  9  Paige, 
363;  Beauford  v.  Collier,  6  Humph.  487 ;  Bridges  v.  Wilkins,  3  Jones,  Eq. 
342. 


236  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

gifts  of  property  to  the  wife,  independent  of  the  husband,  upon 
the  ground  that  the  donor  of  the  property,  being  the  absolute 
owner,  has  the  absolute  right  to  dispose  of  it  to  such  persons, 
and  upon  such  conditions  and  limitations,  not  contrary  to  law, 
as  he  chooses  ;  and  as  the  husband  has  no  rights  in  such  prop- 
erty, it  is  depriving  him  of  no  rights,  to  confer  none  upon  him. 
Thus  it  becomes  a  mere  question  of  public  policy,  whether  pro- 
prietary rights  should  be  conferred  upon  a  wife,  independent  of 
her  husband.  Public  policy  in  regard  to  the  matter  has  settled 
down  upon  the  propriety  of  conferring  separate  proprietary 
rights  upon  married  women.  Equity  has  taken  one  other  step 
in  favor  of  married  women,  which  is  not  generally  permitted 
in  favor  of  men  or  unmarried  women.  In  general,  conditions 
or  limitations  forbidding  the  alienation  of  property  by  persons 
sui  juris  cannot  be  maintained  ;  but  courts  of  equity  early 
sanctioned  a  condition  or  limitation  of  property  upon  married 
women,  forbidding  them  to  anticipate  the  income  in  any  way ; 
that  is,  prohibiting  them  in  any  way  from  selling  the  property 
or  its  future  produce  for  a  present  sum  in  hand.  Thus  pro- 
tected, a  married  woman  may  enjoy  property  in  her  own  right, 
in  such  manner  that  neither  she  nor  her  husband,  nor  both 
together,  can  alienate  or  anticipate  the  income. 

§  647.  When  these  settlements  or  trusts  for  the  separate  use 
of  married  women  were  first  established,  it  was  supposed  that 
a  trustee  was  necessary ,i  but  it  is  now  determined  that  the' 
interposition  of  an  express  trustee  is  not  absolutely  necessary ; 
that  if  it  is  necessary  in  order  to  carry  out  the  intention  of  the 
settlor  to  have  a  trustee,  the  husband  shall  be  construed  to 
take  the  legal  title  in  trust  for  the  wife,  and  he  may  be  com- 
pelled to  act  accordingly .2     But,  in  order  to  sustain  a  trust  for 

1  Harvey  v.  Harvey,  1  P.  Wms.  125;  2  Vern.  659;  Burton  v.  Pierpont, 
2  P.  Wms.  78  ;  2  Rop.  Hus.  and  Wife,  152. 

2  Richardson  v.  Stodder,  100  Mass.  528 ;  Wilkinson  v.  Cheatham,  45 
Ala.  337  ;  Marsh  v.  Marsh,  43  Ala.  677  ;  Lampley  v.  Watson,  43  Ala.  377 ; 
Burnett  v.  Davis,  2  P.  Wms.  316 ;  Parker  v.  Brooke,  9  Ves.  583  ;  Rollfe  v. 


§§  646,  647.]         SETTLEMENT   TO    SEPARATE   USE.  237 

the  separate  use  of  a  married  woman,  the  intention  to  exchide 
the  husband  must  be  clear  and  certain,  and  not  a  matter  of 
inference,  upon  this  principle  that  the  husband  is  bound  to 
maintain  the  wife,  and  bear  the  burdens  incident  to  marriage, 
and  he  has  prima  facie  a  right  to  her  property  to  enable  him 
to  discharge  these  obligations.^  No  particular  form  of  words 
is  necessary  to  create  a  trust  for  the  separate  use  of  the  married 
woman ;  but  the  intention  to  exclude  the  husband  must  be 
unequivocal,^  and  when  the  meaning  is  clear,  the  court  will 
carry  the  intention  into  effect.^ 

Budder,  Biinb.  187  ;  Prichard  v.  Ames,  T.  &  R.  222 ;  Newlands  v.  Poynter, 
10  Sim.  377  ;  4  M.  &  Cr.  408;  Turnley  v.  Kelley,  Wallis.  R.  by  Lyne, 
311;  Archer  v.  Rooke,  7  Ir.' Eq.  478;  Darley  v.  Darley,  3  Atk.  399;  Lee 
«;.  Pridaux,  3  Bro.  Ch.  383  ;  Baggett  v.  Meux,  1  Phil.  627 ;  Rich  v. 
Cockell,  1  Phil.  375 ;  Gardner  v.  Gardner,  1  Gif.  129 ;  Major  v.  Lansley, 
1  R.  &  M.  355  ;  Herr's  App.  5  W.  &  S.  494  ;  Reade  r.  Livingstone,  3  John. 
Ch.  490  ;  Searing  v.  Searing,  9  Paige,  284  ;  Pinney  v.  Fellows,  15  Vt.  53G  ; 
Barron  v.  Barron,  24  Vt.  375 ;  Grant  v.  Grant,  34  L.  J.  Ch.  641 ;  Wade  v. 
Fisher,  9  Rich.  Eq.  362 ;  Boykin  v.  Ciples,  2  Hill,  Ch.  200  ;  Bosken  v. 
Giles,  Rice,  Eq.  316  ;  Clark  v.  Makenna,  Cheves,  Eq.  163;  Long  v.  White, 
5  J.J.  Marsh.  226;  Trenton  Banking  Co.  u.  Woodruff,  1  Green,  118; 
Steel  V.  Steel,  1  Ired.  Eq.  452 ;  Freeman  v.  Freeman,  9  Mo.  772  ;  Hamilton 
V.  Bishop,  8  Yerg.  33  ;  Jamison  v.  Brady,  6  S.  &  R.  4GG ;  Heck  v.  Clip- 
pinger,  5  Barr,  385 ;  Shirley  v.  Shirley,  9  Paige,  364 ;  Fears  v.  Brooks,  12 
Ga.  195. 

1  Wills  V.  Sayers,  4  Mad.  409 ;  Massey  v.  Parker,  2  M.  &  K.  181 ; 
Kensington  v.  DoUand,  2  M.  &  K.  188;  Moore  v.  Morris,  4  Dr.  37;  Ex 
parte  Ray,  1  Mad.  207 ;  Rudiscll  v.  Watson,  2  Dev.  Eq.  430  ;  Ashcroft  v. 
Little,  4  Irc'd.  Ya\.  236;  Hunt  v.  Booth,  1  Freem.  215  ;  Williams  v.  Clair- 
borne,  7  Sni.  &  M.  488  ;  Carroll  v.  Lee,  3  Gill  &  J.  505 ;  Evans  v.  Knorr, 
4  Rawle,  66  ;  Evans  v.  Gillespie,  1  Swan,  128;  Cook  v.  Kennedy,  12  Ala. 
42;  Moss  v.  McCall,  12  Ala.  630;  Pollard  v.  Merrill,  15  Ala.  170;  Mitchell 
V.  Gates,  23  Ala.  428 ;  Welch  v.  Welch,  14  Ala.  76 ;  Halo  v.  Stone,  14 
Ala.  803  ;  Fears  v.  Brooks,  12  Ga.  197. 

'  Nightingale  v.  Hidden,  7  R.  L  115. 

'  Darley  v.  Darley,  3  Atk.  399 ;  Stanton  v.  Hall,  2  R.  &  M.  180;  Stuart 
V.  Kissam,  2  Barb.  294 ;  West  v.  West,  3  Rand.  373 ;  Lewis  v.  Adam,  6 
Leigh,  320  ;  Perry  v.  Boileau,  10  S.  &  R.  208;  Ballard  v.  Taylor,  4  Des. 
550;  Davis  v.  Cain,  1  Ired.  Eq.  305;  Heathman  v.  Hall,  3  Ired.  Eq.  414; 
Hamilton  v.  Bi.shop,  8  Yerg.  33 ;  Beaufort  v.  Collier,  6  Humph.  487 ; 
Soniers  v.  Craig,  9  Humph.  467 ;    Nixon  v.  Rose,  12  Grat.  485 ;  Fears  v. 


238  TRUSTEES    FOR   MARRIED   "WOMEN.  [CHAP.  XXII. 

§  648.  A  husband's  right  will  not  attach,  if  the  gift  is  to  the 
wife  "  for  her  sole  and  separate  use  ; "  ^  or  "  solely  for  her  own 
use  ;"^  or  "for  her  livelihood;"^  or  "that  she  may  receive 
and  enjoy  the  profits  ;  "  *  or  "  to  be  at  her  disposal ;  "  ^  or  "  to 
be  by  her  laid  out  in  what  she  shall  think  fit ; "  ^  or  "  for  her 
own  use  independent  of  the  husband  ; "  '^  or  "  not  subject  to  his 
control  ;  "  ^  or  "  to  her  own  use  and  benefit  independent  of  any 
other  person  ;  "  ^  or  "  to  receive  the  rents  while  she  lives,  whether 
married  or  single  ;"  '^^  and  not  to  sell  or  mortgage,  or  "her  re- 
Brooks,  12  Ga.  195;  Clark  v.  Maguire,  16  Mo.  362;  Dnvall  v.  Graves,  7 
Bush.  461 ;  Baal  v.  Morgner,  46  Mo.  48. 

'  Parker  v.  Brooke,  9  Ves.  583;  Petty  v.  Booth,  19  Ala.  633;  Scar- 
borough V.  Borman,  1  Beav,  34  ;  4  M.  «&  Cr.  377 ;  Archer  v.  Rooke,  7  Ir. 
Eq.  498. 

^  Re  Tarsley's  Trust,  L.  R.  1  Eq.  561;  Adamson  v.  Armitage,  19  Ves. 
416;  Coop.  283  ;  Ex  parte  Ray,  1  Mad.  199  ;  Ex  jjarte  Killick,  3  Mont., 
D.  &  D.  480;  Davis  v.  Prout,  7  Beav.  288;  Arthur  v.  Arthur,  11  Ir.  Eq. 
511  ;  Lindsell  v.  Thacker,  12  Sim.  178;  Massey  v.  Parker,  2  M.  &  K.  181 ; 

V.  Lyne,  Yo.  562 ;  Tullett  v.  Armstrong,  4  M.  &  Cr.  403  ;  Gilbert 

V.  Lewis,  1  De  G.,  Jo.  «&  S.  39  ;  Lewis  v.  Mathews,  L.  R.  2  Eq.  177 ; 
Inglefield  v.  Coghlan,  2  Coll.  247 ;  Jamison  v.  Brady,  6  Ser.  &  R.  466 ; 
Snyder  r.  Snyder,  10  Barr,  423  ;  Jarvis  v.  Prentice,  19  Conn.  273 ;  Good- 
rum  V.  Goodrum,  8  Ired.  Eq.  313;  Cuthbert  v.  Rolf,  19  Ala.  373;  Warren 
V.  Haley,  1  Sm.  &  M.  Ch.  647 ;  Stuart  v.  Kissam,  3  Barb.  494  ;  Griffith  v. 
Griffith,  5  B.  Mon.  113  ;  Fisher  v.  Filbert,  6  Barr,  61;  Collins  v.  Rudolph, 
19  Ala.  616. 

s  Darley  v.  Darley,  3  Atk.  399 ;  Cape  v.  Cape,  2  Y.  &  C.  543  ;  Lee  v. 
Prieaux,  3  Bro.  Ch.  383 ;  Wardle  v.  Claxton,  9  Sim.  524. 

4  Tyrrell  v.  Hope,  2  Atk.  558. 

*  Prichard  v.  Ames,  T.  &  R.  222  ;  Kirk  v.  Paulin,  7  Vin.  96  ;  Tyler  v. 
Lake,  2  R.  &  M.  188 ;  Stanton  v.  Hall,  2  R.  &  M.  180. 

*  Atcherley  v.  Vernon,  10  Mod.  531. 

'  Waggstaff  V.  Smith,  9  Ves.  520 ;  Dixon  v.  Olmius,  2  Cox,  414  ;  Sim- 
mons V.  Horwood,  1  Keen,  9 ;  Newlands  v.  Paynter,  4  M.  &  Cr.  408 ; 
Tullett  V.  Armstrong,  1  Beav.  1  ;  4  M.  &  Cr.  377. 

8  Bain  v.  Lescher,  1 1  Sim.  397. 

^  Margetts  v.  Barringer,  7  Sim.  482  ;  Newman  v.  James,  12  Ala.  29 ; 
Brown  v.  Johnson,  17  Ala.  232;  Gould  v.  Hill,  18  Ala.  84;  Williams  v. 
Maull,  20  Ala.  721;  Gillespie  v.  Burleson,  28  Ala.  551  ;  Ashcraft  v.  Little, 
4  Ired.  Eq.  236  ;  Glover  v.  Hare,  16  Sim.  568. 

•"  Goulder  v.  Camm,  De  G.,  F.  &  Jo.  146;  6  Jur.  (x.  s.)  113. 


§  648.]         SETTLEMENT  TO  SEPARATE  USE.  239 

ceipt  to  be  a  sufficient  discharge  ;  "  ^  or  "  to  be  delivered  to  her 
on  demand  ;  "  ^  or  if  the  gift  is  to  the  husband,  should  he  be  liv- 
ing with  his  wife,  but  if  separate,  then  half  to  the  husband  and 
the  other  half  to  the  wife  "  absolutely  ;  "  ^  or  "  to  be  for  her  own 
and  her  family's  use  during  her  natural  life  ;  "  *  or  "  to  be  paid 
to  her  semiannually  during  her  life,  and  afterwards  to  her  chil- 
dren ; "  °  or  "  to  be  at  her  own  disposal  in  true  faith  to  her  and 
her  heirs  for  ever  ; "  ^  or  "  for  the  use  and  benefit  of  the  wife  and 
her  heirs  ;  "  "  or  "  for  the  entire  use,  benefit,  profit,  and  advan- 
tage of  the  wife ; "  ^  or  "  not  to  be  sold,  bartered,  or  traded  by 
the  husband  ;  "  ^  or  "  for  her  support."  ^°  A  conveyance  by  a 
husband  in  trust  for  his  wife  is  for  her  separate  use  ;  ^^  a  gift  to 
her  separate  use  and  a  subsequent  legacy  in  addition  thereto  is 
separate  ;  ^^  and  so  is  a  provision  not  to  be  liable  for  a  husband's 
debts,^^  the  devisee  and  her  heirs  to  use  and  enjoy  the  rents,^'* 
"  to  be  hers  and  hers  only; "  ^^  or  that  her  husband  shall  not 
dispose  of  it  without  her  consent ;  ^^  or  that  she  enjoy  and  receive 

1  Lee  V.  Prieaux,  3  Bro.  Cb.  381  n.,  383;  Stanton  v.  Hall,  2  R.  &  M. 
ISO;  Tyler  v.  Lake,  2  R.  «&  M.  188. 

^  Dixon  V.  Ohnius,  2  Cox,  414. 

'  Shewell  V.  Dwarris,  1  John.  (Eng.)  172  ;  Brown  v.  Johnson,  17  Ala. 
232. 

*  Heck  V.  Clippenger,  5  Barr,  385. 

6  Tyson's  App.  10  Barr,  221;  Hamilton  i;.  Bishop,  8  Yerg.  33;  Strong 
V.  Gregory,  19  Ala.  146 ;  Heck  v.  Clippenger,  5  Barr,  385. 

«  Bridges  v.  Wood,  4  Dana,  610. 

7  Good  r.  Harris,  2  Ired.  Eij.  630. 

8  Hcathman  v.  Hall,  3  Ired.  Eq.  414. 

'  Woodrum  v.  Kirkpatrick,  2  Swan,  218  ;  Clarke  t'.  Windham,  12  Ala. 
798. 

'0  Markley  v.  Singletary,  11  Rich.  Eq.  393. 

"  Steele  v.  Steele,  1  Ired.  Eq.  452,  is  inconsistent  with  Wado  v.  Fisher, 
9  Rich.  Eq.  362. 

'2  Warwick  v.  Hawkins,  21  L.  J.  Ch.  796  ;  Davis  v.  Cain,  1  Ired.  Eq. 
334. 

>8  Martin  v.  Bell,  9  Rich.  Eq.  42;  Young  v.  Young,  3  Jones,  Eq.  216. 

'*  Gardenhire  v.  Hinds,  1  Head,  402. 

'»  Ellis  V.  Woods,  9  Rich.  Eq.  19 ;  Ozley  v.  Ikelheimer,  26  Ala.  332. 

'"  Johnes  v.  Lockhart,  3  Bro.  Ch.  383,  u. 


240  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

the  rents  and  profits.^     A  gift  to  the  wife  "  exclusively  "  will 
excude  the  husband.^ 


§  649.  On  the  other  hand,  it  has  been  held  that  the  following 
expressions  are  not  so  unequivocal  as  to  afford  certain  evidence 
of  an  intention  to  exclude  the  husband  from  all  control.  "  In 
trust  to  pay  to  her  ;  "  ^  or  "  to  her  and  her  assigns  ;  "  ^  or  "  to 
her  use  ;  "  ^  or  "  to  her  own  use  ;  "  ^  or  "  to  her  absolute  use  ;  " " 
or  "  to  her  heirs  and  assigns  for  her  or  their  own  sole  use  ;  "^ 
or  "  to  pay  into  her  own  proper  hands  for  her  own  use  ;  "  ^  or 
"  to  pay  to  her  to  be  applied  to  the  maintenance  of  herself,  and 
such  child  as  the  testator  might  happen  to  leave  at  his  death ; "  ^^ 
or  "  for  the  joint  use  of  the  husband  and  wife  ;  "  ^^  or  "  the  gift 
not  to  extend  to  any  other  person  ;  "  ^  or  "  to  her  and  the  heirs 
of  her  body,  and  to  them  alone  ;  "  ^^  or  "  to  A.  during  her  life, 
and  after  her  death  to  her  issue  ;  "  ^*  or  "  to  her  use  and  bene- 

1  Tyrrell  v.  Hope,  2  Atk.  561 ;  Atcherly  v.  Vernon,  10  Mod.  531 ; 
Goulder  v.  Camm,  1  De  G.,  F.  &  Jo.  146. 

^  Gould  V.  Hill,  18  Ala.  84. 

'  Dakins  v.  Berisford,  1  Ch.  Ca.  194;  Lumb  v.  Milnes,  5  Yes.  517; 
Brown  v.  Clark,  3  Ves.  166 ;  Stanton  v.  Hall,  2  R.  &  M.  175 ;  Beales  v. 
Spencer,  2  N.-C.  C.  65. 

*  Ibid'. 

*  Jacobs  V.  Amyatt,  1  Mad.  376,  n. ;  Wills  v.  Savers,  4  Mad.  411 ;  Anon, 
cited  7  Vin.  96;  Torbett  v.  Twining,  1  Yeates,  432;  Tenant  v.  Stoney,  1 
Rich.  Eq.  222. 

«  Johnes  v.  Lockhart,  3  Bro.  Ch.  383,  n. ;  Wills  v.  Sayers,  4  Mad.  409  ; 
Roberts  v.  Spicer,  5  Mad.  491 ;  Beales  v.  Spencer,  2  Y.  &  C.  Ch.  651 ; 
Darcy  v.  Croft,  9  Ir.  Eq.  19. 

^  Rycroft  v.  Christy,  3  Beav.  238;  Ex  jiarte  Abbott,  1  Deacon,  338. 
«  Lewis  V.  Mathews,  L.  R.  2  Eq.  177 ;  Rudisell  v.  Watson,  2  Dev.  Eq. 
430 ;  Houston  v.  Embry,  1  Sneed,  480. 

9  Tyler  v.  Lake,  2  R.  &  M.  183;    Kensington  v.  Dolland,  2  M.  &  K. 
184 ;  Blacklow  v.  Laws,  2  Hare,  48 ;  Hartley  v.  Hurle,  5  Ves.  545,  contra. 
'"  Wardle  v.  Claxton,  9  Sim.  524;  Chipchase  v.  Simpson,  16  Sim.  485. 
"  Bender  v.  Reynolds,  12  Ala.  446 ;  Geyer  v.  Branch  Bank,  21  Ala.  414. 
'*  Ashcroft  V.  Little,  4  Ired.  Eq.  236. 

"  Foster  v.  Kerr,  4  Rich.  Eq.  390;  Clevestine's  App.  15  Penn.  St.  499. 
'■'  Bryan  v.  Duncan,  11  Ga.  67. 


§§  648-650.]  SEPARATE    USE.  241 

fit ;  "  ^  or  "  not  to  be  liable  for  the  husband's  debts."  ^  The  mere 
gift  to  a  trustee  is  not  enough  ;2  nor  a  mere  direction  to  pay 
the  income  to  the  wife  ;  *  nor  a  bond  to  convey  to  the  wife ;  ^ 
nor  a  conveyance  to  a  wife  and  her  heirs.^  A  direct  devise  to 
a  widow  to  her  sole  use  and  benefit  is  not  enough  ;''  nor  a  gift 
to  a  wife  only.^ 

§  650.  The  authorities  in  the  several  States,  and  even  in  the 
same  State,  are  conflicting  with  each  other,  as  to  what  words 
arq  sufficient,  and  what  are  not  sufficient,  to  create  a  separate 
use  in  a  married  woman.  It  is  wholly  a  matter  of  intention  to 
be  gathered  from  the  wliole  instrument ;  therefore  the  context 
may  compel  the  court  to  give  a  different  meaning  to  the  same 
words  ;  or,  rather  the  court  may  be  compelled  to  draw  differ- 
ent conclusions  of  fact  fi-om  the  same  words  in  different  wills, 
the  burden  always  being  upon  those  who  attempt  to  exclude 
the  husband  to  show  that  such  is  the  necessary  intention  of  the 
instrument.  In  one  case,  it  was  said  that  the  expressions  which 
create  a  separate  estate  may  be  arranged  in  three  classes : 
(1.)  "Where  the  technical  words  "  sole  and  separate  use"  or 
equivalent  words  are  used  ;  (2.)  Where  the  marital  rights  of 
the  husband  are  expressly  excluded ;  (3.)  Where  the  wife  is 
empowered  to  perform  acts  concerning  the  estate  given  to  her, 
inconsistent  with  the  disabilities  of  coverture.^ 

1  Fears  v.  Brooks,  12  Ga.  198;  Clevestine's  App.  15  Penn.  St.  499. 

2  Gillespie  v.  Burlison,  28  Ala.  551.  Contra  are  Martin  v.  Bell,  9  llicb. 
Eq.  42 ;  Young  v.  Young,  3  Jones,  Eq.  266. 

8  Williams  v.  MauU,  20  Ala.  727 ;  Hunt  v.  Booth,  1  Freem.  Cb.  215 ; 
Mayberry  v.  Neely,  5  Humpb.  339  ;  Evans  v.  Knorr,  i  Rawle,  66 ;  Welcb 
V.  Welcb,  14  Ala.  77 ;  Pollard  v.  Merrill,  15  Ala.  170. 

*  Fitfb  V.  Ayer,  2  Conn.  143. 

*  Moore  v.  Jones,  13  Ala.  296. 

6  Hall  V.  Sayre,  10  B.  Mon.  40;  Fitcb  v.  Ayer,  2  Conn.  143;  Shirley  v. 
Sbirley,  9  Paige,  364. 

7  Gilbert  v.  Lewis,  1  De  G.,  J.  &  M.  38. 

8  Spirett  V.  Willows,  11  Jur.  (x.  s.)  70. 
»  Nix  V.  Bradley,  6  llicb.  Eq.  48. 

VOL.  II.  16 


242  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

§  651.  The  trust  must  be  for  the  benefit  of  the  wife,  exclu- 
sive of  all  other  persons  ;  for  if  the  gift  is  to  trustees  for  the 
benefit  of  the  wife  and  her  husband,  or  of  the  wife  and  her  chil- 
dren, or  of  the  wife  and  any  other  person  or  persons,  the  marital 
rights  of  the  wife  will  not  be  excluded  ;  although  the  terms  of 
the  gift  are  such  that  if  the  gift  was  to  the  wife  alone,  a  sepa- 
rate estate  would  be  created  in  her.^  So,  if  the  gift  is  to  the 
husband  and  another  as  trustees  for  the  wife,  it  will  not  be  to 
her  separate  use ; '  but  a  gift  to  the  husband  alone,  in  trust  for 
his  wife,  will  be  to  her  separate  use.^ 

§  652.  As  before  said,  if  property  is  conveyed  to  a  single 
■woman  for  her  sole  and  separate  use,  she  has  the  same  control 
of  it  before  marriage,  as  if  it  was  given  to  her  absolutely ;  but 
the  limitation  to  her  sole  and  separate  use  will  take  effect  upon 
her  marriage.*     Until  then,  the  words  have  no  effect  upon  the 

•  Wanlle  v.  Claxton,  9  Sim.  524 ;  Ashcroft  v.  Little,  4  Ired.  Eq.  23G ; 
Inge  V.  Forrester,  6  Ala.  418;  Jasper  v.  Howard,  12  Ala.  6o2 ;  Good  v. 
Harris,  2  Ired.  Eq.  630;  Hamilton  v.  Bishop,  8  Yerg.  33;  Cliipchase  v. 
Simpson,  16  Sim.  485;  Bender  v.  Reynolds,  12  Ala.  446;  Geyer  v.  Branch 
Bank,  2  Ala.  414;  Lewis  v.  Mathews,  L.  R.  2  Eq.  177;  Rudisell  v.  Wat- 
son, 2  Dev.  Eq.  430;  Houston  v.  Embry,  I  Sneed,  480.  But  see  Heck  v. 
Clippenger,  5  Barr,  385. 

^  Ex  parte  Bulby,  1  Glyn  &  Jam.  167;  Kensington  v.  Dulland,  2  M.  & 
K.  184. 

^  Ibid. ;  Darley  v.  Darley,  3  Atk.  399. 

*  Schaforth  v.  Ambs,  46  Mo.  114;  Brandon  v.  Robinson,  18  Ves.  429; 
Hallett  V.  Thompson,  5  Paige,  383;  Dick  v.  Pitchford,  1  Dev.  &  B.  480; 
Blackstone  Bank  v.  Davis,  21  Pick.  42;  Nickel  v.  Panley,  10  Grat.  336; 
Tullett  V.  Armstrong,  4  M.  &  C.  377  ;  Newlands  v.  Paynter,  4  M.  &  C. 
40S;  Russell  v.  Dickson,  2  Dr.  &  War.  138;  Scarborough  v.  Borman, 
1  Beav.  34;  Clark  v.  Wyndham,  12  Ala.  870;  Miller  v.  Bingham,  1  Ired. 
Eq.  423  ;  Smith  v.  Starr,  3  Whart.  62  ;  Hammersley  v.  Smith,  4  Whart.  126. 
The  proposition  stated  in  the  text  is  not  the  law  of  Pennsylvania,  unless  the 
trust  is  an  active  trust  which  requires  the  legal  title  to  continue  in  the 
trustee.  In  that  State,  to  create  a  valid  trust  for  the  sole  and  separate  use 
of  a  woman,  it  is  necessary  that  she  should  be  married  at  the  time,  or  that 
she  should  be  in  the  immediate  contemplation  of  a  marriage.  This  rule 
is  supposed  to  follow  from  the  doctrine  laid  down  in  Lancaster  v.  Dolan, 
.1  Rawle,  231.     It  was  first  expressly  decided  in  Smith  v.  Starr,  3  Whart. 


§§  651,  652.]  SEPARATE   USE.  243 

property.  Where  the  conveyance  is  directly  to  a  single  woman 
to  her  separate  use  without  a  trustee,  the  husband  becomes  lier 
trustee  on  marriage.^  But  if  a  fund  is  given  to  a  married  woman 
for  her  separate  use  without  a  trustee,  and  her  husband  dies,  and 
she  sells  the  fund,  and  converts  it  into  other  property,  and  mar- 
ries again,  her  husband  will  take  it  in  the  ordinary  manner  at 
common  law.^     Thus  property,  conveyed  to  a  married  woman 

63,  and  is  now  the  established  rule.  See  Hammersley  v.  Smith,  4  Whart. 
129;  McBride  v.  Smyth,  54  Penn.  St.  250;  Yaniairs  App.  70  Penn.  St. 
339;  Ogden's  App.  70  Penn.  St.  501.  The  case  of  Smith  v.  Starr  was  based 
upon  Massey  v.  Parker,  2  Myl.  &  K.  174;  and  although  Massey  v.  Parker 
was  soon  overruled  (see  Tullett  U.Armstrong,  4  My.  &  Cr.  174;  1  Beav.  1), 
the  doctrine  of  the  case,  after  considerable  litigation  and  some  variety  of 
decisions,  has  become  the  settled  law  of  that  State.  See  Dodson  v.  Ball, 
60  Penn.  St.  492;  Frevogle  v.  Hughes,  54  Penn.  St.  228:  Hepburn's  App. 

65  Penn.  St.  472;  Megargee  v.  Naglee,  64  Penn.  St.  2IG;  Springer  v. 
Arundell,  64  Penn.  St.  218  ;  Shonk  v.  Brown,  61  Penn.  St.  325.  It  follows 
from  this  rule,  if  a  trust  is  created  for  a  feme  sole  not  in  contemplation  of 
marriage,  the  property  vests  at  once  in  her,  or  she  may  call  for  a  convej-ance 
at  once,  provided  the  trust  is  not  otherwise  an  active  one.  And  even  if  she 
is  married  after  the  creation  of  the  trust,  but  did  not  contemplate  a  marriage 
at  the  time  of  its  creation,  she  may  still  call  for  a  conveyance  of  the  property. 
So  if  her  husband  dies  the  trust  ceases,  although  well  created  in  the  first 
instance,  and  does  not  revive  upon  a  second  marriage.  Wells  v.  McCall, 
64  Penn.  St.  207;  Megargee  v.  Naglee,  64  Penn.  St.  216;  Frevogle  v.  Hughes, 

66  Penn.  St.  230.  It  need  not  appear,  however,  upon  the  face  of  the  will  or 
settlement,  that  the  trust  for  a_/'e/«e  sole  is  created  in  contemplation  of'her  mar- 
riage, if  the  fact  can  be  shown  in  any  reasonable  manner,  and  that  it  was  known 
to  the  testator  or  settlor.  Well.s  v.  McCall,  64  Penn.  St.  207;  Springer  v. 
Arundell,  64  Penn.  St.  218.  See  §§  310,  310  a,  and  cases  cited.  See  also, 
upon  the  general  subject,  Potts's  App.  6  Casey,  168 ;  Dubs  v.  Dubs,  7  Casey, 
149;  Lyne's  ExVs  v.  Crouse,  1  Barr,  111;  Wallace  v.  Coston,  9  Wall.  137  ; 
Snyder  v.  Snyder,  10  Barr,  423;  Harrison  i'.  Brolaskey,  8  Harris,  302;  Farie's 
Apf).  11  Harris,  30;  Van  Rensselaer  v.  Dunkin,  12  Harris,  252;  Talbot  t'.  Cal- 
vert, 12  Harris,  328;  Nice's  App.  14  Wright,  148;  Tassey's  Trust,  L.  R.  1 
Eq.  561 ;  Scarborough  v.  Borman,  4  My.  &  Cr.  392  ;  Beable  v.  Dodd,  1  T. 

R.  193 ;  Anderson  v.  Anderson,  2  My.  &  Cr.  427  ;  v.  Lyne,  Younge, 

662;  Newton  v.  Reid,  4  Sim.  1 ;  Woodmeston  v.  Walker,  2  R.  &  M.  197  ; 
Brown  V.  Pocock,  2  R.  &  M.  218;  Barton  v.  Briscoe,  Jac.  603;  Jones  v. 
Salter,  2  R.  &  M.  208 ;   Davies  v.  Tliornycroft,  6  Sim.  420. 

'  Ibid.;  Archer  w.  Rooke,  7  Ir.  E(|.  478. 

*  Ibid. ;  Wright  V.  Wright,  2  Jolm.  &  II.  647. 


244  TRUSTEES    FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

to  her  sole  and  separate  use,  becomes  absolutely  hers,  and  may 
be  sold  by  her  as  soon  as  her  husband  dies,  or  creditors  may 
seize  it  for  her  debts.^ 

§  653.  If  property  is  settled  to  the  separate  use  of  a  woman, 
and  the  separate  use  is  intended  to  be  confined  to  a  particular 
marriage,  and  the  husband  dies,  and  the  widow  marries  again, 
the  second  husband  will  take  his  common-law  rights  in  the 
property ,2  So  if  property  is  settled  on  a  married  woman  for 
her  separate  use,  independent  of  her  husband,  "  B.,"  and  "  B." 
dies,  and  the  widow  marries  again,  her  second  husband  will 
take  his  common-law  rights  over  the  property.^  But  if  the 
separate  use  is  plainly  intended  by  the  instrument  to  extend  to 
all  future  marriages,  the  intent  will  be  carried  into  effect,  so 
long  as  it  can  be  applied  to  the  property,  and  to  all  the  income, 
whether  in  arrears  or  not  at  the  time  of  the  marriage.*  Whether 
the  separate  use  shall  continue  through  several  marriages  is 
wholly  a  matter  of  intention.  There  was  at  one  time  a  dis- 
position to  confine  it  to  the  first  or  present  coverture ;  for,  the 
moment  the  first  husband  is  dead,  the  widow  has  an  absolute 
power  of  disposal,  and  it  was  thought  that,  if  a  husband  took 
a  wife  with  such  powers  over  her  property,  he  must  take  his 
common-law  rights  over  it ;  ^  but  it  is  now  established,  that,  if 

'  Ibid,  See  all  the  cases  before  cited  to  this  section.  Barton  v.  Briscoe, 
Jao.  6U3;  Jones  v.  Salter,  2  R.  &  M.  208;  Woodmeston  v.  Walker,  2  R.  & 
M.  197  ;  Parker  v.  Converse,  5  Gray,  33G. 

2  Barton  v.  Briscoe,  Jac.  603;  Benson  v.  Benson,  6  Sim.  126;  Knight  r. 
Knight,  6  Sim.  121;  Jones  v.  Salter,  2  R.  «&  M.  208  ;  Moore  v.  Harris,  4  Dr. 
33;  Tudor  v.  Samyne,  2  Vern.  270;  Turner's  Case,  1  Ch.  Ca.  307;  1  Vern. 
7  ;  Saunders  v.  Page,  3  Ch.  R.  224;  Pitt  v.  Hunt,  1  Yern.  18;  Howard  v. 
Hooker,  2  Ch.  R.  81 ;  Edmonds  v.  Dennington,  cited  2  Vern.  17. 

^  Moore  v.  Harris,  4  Dr.  33. 

*  Ashton  V.  McDougall,  5  Beav.  56;  Re  GafFee,  7  Hare,  101;  1  Mac.  & 
G.  541. 

*  Hammersley  v.  Smith,  4  Wbart.  126;  Lindsay  r.  Harrison,  3  Eng.  311 ; 
Dick  V.  Pitchlord,  1  Dev.  &  B.  Eq.  480;  Miller  v.  Bingham,  1  Ired.  Eq. 
423 ;  Massey  v.  Parker,  2  M.  &  K.  174 ;  Smith  v.  Starr,  3  Whart.  62.     See 


§§  652-654.]        POWERS  of  married  women.  245 

the  property  is  clearly  settled  to  the  separate  use  of  a  woman, 
such  separate  use  will  attach  so  often  as  she  may  be  married.^ 

§  654.  A  married  woman  may  deal  with  property  settled  to 
her  separate  use  precisely  as  she  could  deal  with  it  if  she  were 
a  single  woman,  and  without  the  concurrence  of  the  trustees, 
unless  the  power  of  anticijjation  is  restrained,  and  unless  there 
are  provisions  in  the  instrument  of  settlement  preventing  lier.^ 
Lord  Tlmrlow  said,  that  "  a  feme  covert,  acting  with  respect  to 
her  separate  property,  is  competent  to  act  in  all  respects  as  if 
she  were  a  feme  sole.''''  ^  But  she  wuU  be  protected  against  fraud, 
and  the  improper  influence  of  her  husband.*  Therefore  a  mar- 
ried woman  may  sue  and  be  sued  in  regard  to  her  separate 
property.^  She  may  obtain  an  order  to  answer  separately  as  a 
defendant,®  and  she  may  be  served  with  process  by  leave  of  court 
if  out  of  the  jurisdiction.'^  She  may  present  a  petition  with  or 
without  her  husband  ;  ^  and  she  will  be  bound  by  her  submission 
in  her  bill,^  or  answer,^*^  or  by  a  settlement  of  accounts, ^^  or  by 

Harrison  v.  Brolaskey,  20  Penn.  St.  299 ;  Clarke  v.  Wyndhara,  12  Ala.  800; 
Steacy  v.  Rice,  27  Penn.  St.  75. 

1  Roberts  v.  West,  15  Ga.  123;  Gaffee's  Trust,  1  Mac.  &  Gor.  541, 
overruling  7  Hare,  101 ;  Beaufort  v.  Collier,  6  Humph.  487 ;  Shirley  v. 
Shirley,  9  Paige,  364;  Waters  v.  Tazewell,  9  Md.  291;  Tullett  v.  Arm- 
strong, 1  Beav.  1;  4  My.  &  Cr.  377;  Searborough  v.  Borniaii,  1  Beav.  34. 
See  §  652,  and  notes. 

"  Grigby  v.  Cox,  1  Ves.  518;  Dowling  v.  Maguire,  Plunket,  19;  Essex  v. 
Atkins,  14  Ves.  552;  Coryell  i\  Dunton,  7  Barr,  532. 

3  Hulme  V.  Tenant,  1  Bro.  Ch.  20;  1  Lead.  Ca.  Eq.  398,  and  notes. 

4  Knight  V.  Knight,  11  Jur.  (n.  s.)  618. 

'  Jackson  v.  Haworlh,  1  S.  &  S.  161  ;  Thompson  v.  Beaseley,  Eq.  R.  59. 

®  Ibid.  But  if  she  answer,  separately,  without  leave  of  the  court,  her 
answer  will  be  quashed.  Perine  v.  Swaine,  1  John.  Ch.  24.  And  see 
Furguson  v.  Smith,  2  John.  Ch.  139. 

"^  CoppiTthwaite  v.  Tuite,  13  Ir.  Eq.  68. 

8  Re  Crump,  34  Beav.  570.  »  Allen  r.  Papworth,  1  Ves.  163. 

'°  Clerk  V.  Miller,  2  Atk.  379 ;  Bailey  v.  Jackson,  C.  P.  Cooper,  405  ; 
Cowdery  v.  Way,  Lewin  on  Trusts,  541  (5th  ed.)  ;  Callow  v.  Howie.  1  De 
G.  &  Sin..33l ;  Bceching  v.  Morphew,  8  Hare,  120  ;  Clive  v.  Carew,  1  John. 
&  H. 207. 

"  Wilton  V.  Hill,  25  L.  J.  Ch.  156. 


24:6  TRUSTEES    FOR    MARRIED    WOMEN.         [CHAP.  XXII. 

a  contract  of  sale,^  and  she  may  be  made  a  contributor  in  the 
winding-up  order  of  a  corporation  ;  ^  her  declarations  may  be 
read  in  evidence  against  her,^  and  she  will  be  liable  to  attach- 
ment for  want  of  an  answer  when  she  answers  separately/  or 
for  disobeying  the  orders  of  the  court ;  ^  or  her  separate  prop- 
erty may  be  ordered  to  be  sequestered.^  But  in  all  proceedings 
in  equity  in  relation  to  the  wife's  separate  estate,  the  husband 
ought  to  be  made  a  defendant,  especially  if  he  claims  any  inter- 
est, or  any  of  his  acts  are  in  question.'^ 

§  655.  In  England  a  married  woman,  being  considered  a 
single  woman  in  relation  to  her  separate  property,^  may  exer- 
cise all  the  rights  incident  to  the  ownership  of  property,  unless 
her  power  is  restricted  by  the  instrument  of  conveyance  ;  there- 
fore, if  personal  property  is  simply  given  to  her  separate  use, 
she  may  sell  the  same  as  if  she  were  single.^  In  New  Jersey ,i** 
Connecticut,!^  Kentucky ,^2  Yirginia,!^  North   Carolina,!^  Ala- 

>  Davidson  v.  Gardner,  Sugd.  V.  &  P.  891  (11th  ed.)  ;  Stead  v.  Nelson, 
2  Beav.  248;  Harris  v.  Mott,  14  Beav.  169;  Vansittart  v.  Vansittart, 
4  K.  &  J.70;  Milnes  v.  Busk,  2  Ves.  Jr.  498. 

"  Re  Leeds  Banking  Co.  1  W.  N.  361. 

3  Peacock  v.  Monk,  2  Ves.  193. 

4  Graham  v.  Fitch,  2  De  G.  &  Sm.  246;  Taylor  v.  Taylor,  12  Beav.  271; 
Home  V.  Patrick,  30  Beav.  405.  ^  Ottway  v.  Wing,  12  Sim.  90. 

«  Keogh  V.  Cathcart,  11  Ir.  Eq.  280. 

">  Thorby  V.  Yates,  1  N.  C.  C.  438;  Bradley  v.  Emerson,  7  Vt.  369; 
Clarkson  v.  De  Peyster,  3  Paige,  336 ;  Dewall  v.  Covenhoven,  5  Paige, 
581 ;  Grout  v.  Van  Schoonhoven,  9  Paige,  255 ;  Stuart  v.  Kissam,  2  Barb. 
S.  C.  493;  Sherman  v.  Burnham,  6  Barb.  403;  Wilson  v.  Wilson,  6  Ired. 
Eq.  236. 

8  Hulme  V.  Tenant,  1  Bro.  Ch.  21;  1  Lead.  Ca.  Eq.  398;  Socket  v.Wray, 
4  Bro.  Ch.  486;  Peacock  r.  Monk,  2  Ves.  190;  Pybus  v.  Smith,  4  Bro.  Cb. 
346;  Lillia  v.  Ayre,  1  Ves.  Jr.  278;  Wagstaff  v.  Smith,  9  Ves.  524;  Witts 
r.  Dawkins,  12  Ves.  501 ;  Sturgis  v.  Corp,  13  Ves.  190. 

'  Fettiplace  v.  Gorges,  3  Bro.  Ch.  10. 

'"  Leaycraft  v.  Hedden,  3  Green,  Ch.  512. 

1^  Imlay  v.  Huntington,  20  Conn.  175;  Dunlap  v.  Plumb,  8  Conn.  447; 
Leavitt  v.  Beirne,  21  Conn.  1;  Wells  v.  Thorman,  37  Conn.  319. 

12  Coleman  v.  Woolley,  10  B.  Mon.  320;  Shipp  ».  Bowniar,  5  B.  ]\Ion. 
163.  "  Vizoneau  v.  Pegram,  2  Leigh,  183. 

^    Newlin  v.  Freeman,  4  Ired.  Eq.  312. 


§§  654, 655.]        POWERS  of  married  women.  247 

bama,^  Georgia,^  Missouri,-^  the  same  rule  is  followed.  But  if 
a  particular  mode  of  dealing  with  her  separate  personal  es- 
tate is  prescribed  in  the  instrument  of  settlement,  and  particular 
powers  are  given  to  her  to  be  exercised,  and  alienation  is  for- 
bidden, either  in  express  or  implied  terms,  she  cannot  deal  with 
the  estate,  except  in  the  manner  pointed  out,  and  she  cannot 
sell  in  any  other  or  different  manner,*  even  by  proceedings  in 
court.^  This  rule  is  followed  in  all  the  American  States,  with 
this  further  addition  in  some  of  the  States,  that,  unless  the 
power  of  alienation  is  given  to  her  in  the  instrument  of  settle- 
ment, she  cannot  sell  the  personal  estate  at  all ;  for  the  reason  that 
she,  as  a  married  woman,  can  exercise  no  powers  not  conferred 
upon  her  by  the  gift,  and  the  mere  gift  of  personal  property  to 
her  sole  and  separate  use  does  not  in  express  terms,  nor  by 
necessary  implication,  confer  upon  her  the  power  of  acting  as  a 
single  woman,  and  of  selling  the  same.  This  is  the  law  in  Penn- 
sylvania,^ South  Carolina,^  Rhode  Island,^  Maryland,^  Missis- 
sippi,^*^ and  Tennessee.'^  In  New  York,  this  limitation  of  a  wife's 
power  of  selling  was  first  established  by  Chancellor  Kent ;  ^^  but 
he  was  overruled,  and  the  English  doctrine,  that  a  wife  may 

^  Bradford  v.  Greenway,  17  Ala.  80.5 ;  Collins  v.  Lavenberg,  19  Ala. 
685. 

^  Fears  v.  Brooks,  12  Ga.  200 ;  Wylly  v.  Collins,  9  Ga.  223. 

'  Coats  V.  Robinson,  10  Mo.  757;  Kirwin  v.  Weippert,  4G  Mo.  5.32. 

*  Ross  V.  Ewer,  2  Atk.  15(5 ;  Croft  v.  Slee,  4  Ves.  60 ;  Anderson  v. 
Dawson,  15  Ves.  532 ;  Hopkins  v.  Myall.  2  R.  &  M.  86  ;  Albany  Ins.  Co. 
V.  Bay,  4  Comst.  9  ;  Fears  v.  Brooks,  12  Ga.  200  ;  Leaycraft  v.  Heddeu, 
3  Green,  Ch.  512 ;  Williamson  v.  Beckham,  8  Leigh,  20. 

^  Richards  v.  Chambers,  10  Ves.  580. 

®  Lancaster  v.  Dolan,  1  Rawle,  236. 

'  Dunn  V.  Dunn,  1  S.  C.  3.50  ;  Ewen  v.  Smith,  3  Des.  417 ;  Roid  v. 
Lamar,  1  Strob.  Eq.  27;  Calhoun  v.  Calhoun,  2  Strob.  231;  Porcher  v. 
Reid,  12  Rich.  Ecj.  349;  Nix  v.  Bradly,  6  Rich.  Eq.  53. 

»  Mctcalf  V.  Cook,  2  R.  I.  355. 

9  Miller  V.  Williamson,  5  Md.  219 ;  Tarr  v.  AVilliams,  4  Md.  Ch.  OS. 
'»  Doty  V.  Mitchell,  9  Sm.  &  U.  435. 

"  Mar;>hall  v.  Stephens,  8  Humph.  159;   Litton  v.  Baldwin,  8  Humph. 
209;  Young  v.  Young,  7  (Jold.  401  ;  Sherman  v.  Turpin,  7  Cold.  3^2. 
^^  Methodist  Church  v.  Jaques,  3  John.  Ch.  78. 


i248  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

sell  her  separate  personal  property,  unless  prohibited,  has  pre- 
vailed.^ In  States  where  the  English  rule  prevails,  if  a  power 
is  given  to  a  married  woman  to  be  exercised  in  relation  to  her 
separate  personal  property,  and  the  absolute  interest  is  given 
to  her  in  default  of  her  exercise  of  the  power,  she  may  decline 
to  exercise  the  power,  and  thereby  acquire  the  right  to  sell  the 
property  as  a  single  woman.^  Where  a  wife  disposes  of  her 
separate  property  in  trust,  under  a  power  contained  in  the  in- 
strument, the  trustee  must  see  to  it  that  the  power  is  executed  as 
it  is  given  ;  for  if  a  married  woman  should  dispose  of  the  prop- 
erty in  a  manner  not  authorized  by  the  power,  and  the  trustee 
should  part  with  the  fund,  he  would  be  liable  to  replace  it.^ 

§  656.  Where  real  estate  is  conveyed,  either  absolutely  to 
the  separate  use  of  a  married  woman,  or  to  a  trustee  for  her 
absolute  separate  use,  she  can  sell  and  dispose  of  it  only  in  the 
manner  provided  by  law.  She  must  execute  and  acknowledge 
a  deed.  In  most  States  it  is  provided  by  law,  that  a  married 
woman  shall  not  convey  her  real  estate  without  the  consent  of 
her  husband  in  writing,  for  the  reason  that  the  husband  is  en- 
titled to  his  curtesy  in  botli  the  legal  and  equitable  real  estate 
of  the  wife,  though  conveyed  to  her  separate  use."*     But  in 

'  Methodist  Church  v.  Jaques,  17  John.  548,  overruling  3  John.  Ch.  78; 
Dyett  V.  Coal  Co.  20  Wend.  570. 

2  Elton  V.  Shepherd,  1  Bro.  Ch.  532;  Anderson  v.  Dawson,  15  Ves. 
532 ;  Barford  v.  Street,  16  Ves.  135 ;  Barrymore  v.  Ellis,  8  Sim.  1  ;  2  Rop. 
Has.  and  Wife,  230. 

3  Hopkins  v.  Myall,  2  R.  &  M.  86  ;  Mant  v.  Leith,  15  Beav.  526 ; 
McClintic  v.  Ochiltree,  4  W.  Va.  249. 

"  Peacock  v.  Monk,  2  Ves.  192  ;  Dillon  r.  Grace,  2  Sch.  &  L.  462 ; 
Wright  V.  Cadogan,  2  Eden,  257  ;  Arab.  468;  2  Rop.  Hus.  &  Wife,  185; 
2  Story,  Eq.  Jur.  §  188  ;  Shipp  v.  Bowmar,  5  B.  Mon.  163.  But  in  New 
York  a  married  woman  may  convey  any  interest  in  her  lands  without  join- 
ing her  husband,  and  it  seems  without  acknowledging  the  deed  ;  it  being 
in  the  nature  of  an  appointment.  Albany  Fire  Ins.  Co.  v.  Bay,  4  Comst. 
9  ;  Lechmere  v.  Brotheridge,  32  Beav.  3.53  ;  Taylor  v.  Meads,  34  L.  J. 
(X.  s.)  Ch.  203;  11  Jur.  (n.  s.)  166;  Adams  v.  Gamble,  11  Ir.  Eq.  269; 
12  Ir.  Eq.  103;   see  11  Jur.  (x.  s.)  77  ;  Hall  v.  Waterhouse,  11  Jur.  (n.  s.) 


§§  655-657.]  HOW  far  may  contract.  24U 

those  States  where  a  wife  may  sell  personal  estate  which  is 
limited  to  her  separate  use,  she  may  sell  the  income  of  real 
estate  which  is  limited  in  the  same  manner ;  for  the  rents 
and  profits  may  be  disjjosed  of  without  an  express  power,  in 
the  same  manner  as  her  personal  estate.^  So  if  an  annuity, 
charged  on  land,  is  given  to  her  separate  use,  she  may  sell  it.^ 
If  a  power  of  sale  is  given  to  her  in  the  same  instrument  tliat 
conveys  real  estate  to  her  separate  use,  she  may  exercise  the 
power  in  the  manner  pointed  out  in  the  settlement,  with  or 
without  the  consent  of  her  husband  ;  ^  and  equity  compels  her 
to  execute  such  power,  if  she  has  for  a  valuable  consideration 
entered  into  a  contract  to  do  so."^ 

§  657.  Intimately  connected  with  the  right  of  a  married 
woman  to  dispose  of  her  separate  estate,  is  the  right  or  power 
of  such  feme  covert  to  contract  debts,  and  charge  her  separate 
estate,  either  by  specific  agreements  in  relation  to  it,  or  by 
general  engagements.  In  England,  the  courts  have  determined 
that  if  a  married  woman,  having  property  to  her  separate  use, 
binds  herself  by  a  written  instrument  to  pay  a  sum  of  money, 
the  implication  of  law  is,  that  she  intended  to  charge  her  sepa- 
rate estate,  although  she  makes  no  reference,  direct  or  indirect, 
to  such  se[)arate  estate  ;  for,  otherwise,  the  instrument  is  with- 
out meaning  and  nugatory,  she  liaving  no  power  to  make  snch 
an  instrument  except  as  a  charge  upon  her  separate  estate. 
Therefore,  if  a  married  woman  executes  a  bond,^  even  to  her 

361 ;  Ex  parte  Shirley,  5  Bing.  226  ;  Harris  v.  Mott,  14  Beav.  1C9 ;  Taylor 
V.  Meads,  10  Jur  (n.  s.)  166  ;  4  De  G.,  J.  &  S.  51)7. 

1  Vizoncau  v.  Pegrain,  2  Leigh,  183. 

8  Major  V.  Lansley,  2  R.  &  M.  3;)5. 

8  Rippon  V.  Dawding,  Aiiib.  565 ;  Rich  v.  Beaumont,  3  Bro.  P.  C  308  ; 
Tomlinson  v.  Dighton,  1  P.  Wms.  149;  Peacock  v.  Monk,  2  Ves.  191; 
Dowries  I'.  Tiiuperon,  4  Russ.  334  ;  Wright  v.  Cadogan,  2  Eden,  239. 

*  Dowel!  0.  Dew,  12  L.  J.  (s.  s.)  Ch.  158  ;  1  Y.  &  C.  Ch.  345 ;  7  Jur. 
117. 

6  Lillia  V.  Ayre,  1  Yes.  Jr.  277  ;  Norton  v.  Turvill.  2  P.  Wms.  144 ; 
Peacock  v.  Monk,  2  Ves.  193 ;  Tullett  v.  Armstrong,  4  Beav.  323. 


250  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

husband,!  or  joins  her  husband  or  other  person  in  executing  a 
bond,^  or  signs  a  promissory  note^  or  bill  of  exchange,^  or 
takes  a  lease  agreeing  to  pay  rent,^  or  gives  a  written  retainer 
to  a  solicitor,^  or  if  she  enters  into  a  written  contract  to  pur- 
chase an  estate,^  her  separate  estate  will  be  bound  to  make 
good  her  contract,  and  it  may  be  reached  by  proper  proceed- 
ings, though  she  is  not  liable  personally  ;  ^  and  it  is  not  neces- 
sary that  her  contract  should  refer  to  her  separate  estate,  or  that 
the  other  party  should  know  that  she  was  a  married  woman.^ 
Where  a  single  woman  signed  a  bond,  and  afterwards  property 
was  settled  upon  her  marriage,  to  her  separate  use,  the  holder 
of  the  bond  filed  his  bill  to  have  the  bond  paid  out  of  her  sepa- 
rate estate,  and,  the  husband  having  absconded,  the  decree  was 
made.!^ 

§  658.  The  principles,  upon  which  the  general  contracts  of 
married  women  have  been  held  to  create  charges  or  liabilities 
to  be  answered  out  of  their  separate  estates,  have  been  the  sub- 
ject of  much  controversy  and  discussion.     Thus  it  was  held  by 

'  Heatley  v.  Thomas,  15  Ves.  596. 

2  Ibid. ;  Stanford  v.  Marshall,  2  Atk.  68  ;  Hulnie  v.  Tenant,  1  Bro.  Ch. 
20  ;  1  Lead.  Ca.  Eq.  398,  notes. 

=•  Bullpin  V.  Clarke,  17  Ves.  365;  Field  v.  Sowle,  4  Russ.  112  ;  Tullett 
V.  Armstrong,  4  Beav.  323  ;  Fitzgibbon  v.  Blake,  3  Jr.  Eq.  328. 

■*  Ibid.  ;  Stuart  v.  Kirkwall,  3  Mad.  387  ;  Coppin  v.  Gray,  1  Y.  &  C. 
Ch.  205  ;  Owen  v.  Homan,  4  H.  L.  Ca.  997. 

«  Gaston  v.  Frankum,  2  De  G.  &  Sm.  561 ;  16  Jur.  507  ;  Master  v. 
Fuller,  4  Bro.  Ch.  19  ;  1  Ves.  Jr.  513. 

«  Murray  v.  Barlee,  4  Sim.  82  ;  3  M.  &  K.  209.  But  if  the  business 
relates  to  her  husband's  affairs,  or  to  her  children's,  and  not  to  her  separate 
estate,  her  mere  employment  of  a  solicitor  will  not  create  a  charge  against 
her  estate.  Callow  v.  Howie,  1  De  G.  «&  Sm.  531 ;  Be  Pugh,  17  Beav. 
336. 

'  Bowling  V.  Maguire,  LI.  &  G.  t.  Plunket,  1 ;  but  see  Chester  v.  Piatt, 
Sugd.  V.  &  P.  173. 

8  Syke's  Trust,  2  John.  &  Hem.  415 ;  Croft  v.  Middleton,  2  K.  &  J. 
194  ;  2  Jur.  (n.  s.)  528. 

»  Dowling  V.  Maguire,  LI.  &  G.  t.  Plunket,  1. 

'"  Briscoe  v.  Kennedy,  cited  1  Bro.  Ch.  17. 


§§  657, 658.]       HOW  far  may  create  debts.  251 

high  authority,  that  every  dealing  of  a  married  woman  in  rela- 
tion to  her  separate  estate  must  be  in  the  nature  of  an  appoint- 
ment, or  a  disposition  ;  and  that  a  married  woman  cannot 
enter  into  general  contracts,  and  therefore  slie  cannot  hind  her 
separate  estate  by  general  engagements. ^  It  is  now,  however, 
well  established  in  England,  that  a  married  woman  may  con- 
tract in  relation  to  her  separate  estate,  and  that  her  contracts 
are  not  in  the  nature  of  appointments,  or  sales  of  her  separate 
estate.2  If  a  married  woman  can  charge  her  separate  estate 
only  by  some  contract  in  the  nature  of  an  appointment,  then  a 
loritten  instrument  is  necessary  to  constitute  a  valid  appoint- 
ment ;  but  if  the  general  contracts  of  a  married  woman  are 
valid  contracts  to  be  paid  out  of  her  separate  estate,  then  there 
is  no  distinction  in  principle  between  ivritten  and  verbal  con- 
tracts in  that  respect ;  and  it  is  now  substantially  settled  that 
the  verbal  contracts  of  a  married  woman  are  equally  binding 
upon  her  separate  estate.^  But  a  parol  contract  will  not  bind 
a  married  woman  where  the  statute  of  frauds  requires  it  to  be 
in  writing;^  nor  is  the  enforcement  of  the  general  engagement 
of  a  married  woman,  out  of  her  separate  estate,  in  the  nature 
of  a  proceeding  for  the  specific  performance  of  a  contract.^ 

'  Bolton  V.  Williams,  2  Ves.  Jr.  142  ;  Whistler  v.  Newman,  4  Ves.  145; 
Greatly  v.  Noble,  3  Mad.  94  ;  Stuart  v.  Kirkwall,  3  Mad,  389;  Aguilar  v. 
A.uuilar,  5  ]\Iad.  418;  Field  v.  Sowle,  4  Russ.  114;  Chester  v.  Piatt,  Sugd. 
V.  &  P.  173  (13th  ed.)  ;  Murray  v.  Barlee,  4  Sim.  82  ;  Digby  v.  Irving,  6 
Ir.  Eq.  149. 

2  Owen  V.  Dickenson,  1  Cr.  &  Phil.  53;  Dowling  v.  Maguire,  Plunket, 
19;  Master  v.  Fuller,  4  Bro.  Ch.  19 ;  Stead  v.  Nelson,  2  Beav.  245  ;  Bailey 
V.  Jackson,  C.  P.  Coop.  495  ;  Francis  v.  Wigzell,  1  Mad.  261 ;  Crosby  v. 
Church,  3  Beav.  489  ;  Tullett  v.  Armstrong,  4  Beav.  323. 

^  Murray  v.  Barlee,  3  M.  &  K.  223;  Clinton  v.  Willes,  1  Sudg.  Pow. 
208,  n. ;  Owens  v.  Dickenson,  1  Cr.  &  Pliil.  53;  Vaughn  v.  Vanderstegen, 
2  Dr.  183 ;  Wriglit  v.  Chard,  4  Dr.  673  ;  Newcomen  v.  Hassard,  1  Ir.  Eq. 
274  ;  Blatchford  v.  Woolley,  2  Dr.  &  Sm.  204 ;  Shattock  v.  Shattock, 
L.  R.  2  Eq.  182. 

*  Syke's  Trust,  2  John.  &  II.  415. 

*  In  Burke  v.  Tuite,  10  Ir.  Eq.  467,  it  was  held  that  contracts  of  a  wife 
not  in  writing  could  not  be  satisfied  out  of  her  real  estate,  because  such 


252  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP,  XXII. 

§  659.  But  while  tlie  general  engagements  of  a  married 
woman  are  not  in  the  nature  of  appointments  of  her  separate 
estate,  yet  in  making  those  engagements  the  married  woman 
must  have  a  general  intention  that  such  contracts  shall  be 
satisfied  out  of  her  separate  estate,  or  they  cannot  be  enforced 
against  either  her  or  her  property.  Thus  the  torts  of  a  mar- 
ried wonjan  cannot  be  satisfied  out  of  her  separate  property, 
because  there  can  be  no  intention  to  create  a  charge  upon 
her  estate.  So  where  there  is  no  contract  that  implies  such 
an  intention,  there  can  be  no  proceeding  against  her  separate 
estate.  Thus,  where  an  annuity  was  charged  on  her  separate 
estate,  and  was  set  aside  for  non-compliance  with  some  rule 
of  law,  it  was  held  that  the  purchase-money  of  the  animity 
could  not  be  recovered  back  out  of  her  separate  estate,  be- 
cause it  had  never  been  in  the  contemplation  of  either  party 
that  the  purchase-money  should  be  paid  back,  and,  as  there 
was  no  contract,  there  could  have  been  no  intention  of  charg- 
ing her  separate  estate.^  And  where  a  married  woman  had 
received  money,  claiming  it  as  her  own,  it  could  not  be  re- 
covered back  from  her  separate  estate  ;  for  there  had  never 
been  an  intention  of  paying  it  back  at  all.^  It  is  difficult  to 
reconcile  all  the  English  authorities.  The  common-law  prin- 
ciple is,  that  a  married  woman  can  make  no  valid  or  binding 
contract.  This  principle  is  recognized  in  equity  ;  and  all  the 
cases  hold  that  a  married  woman  can  make  no  contract  valid 
and  binding  upon  herself  personally  ;  consequently  that  no 
judgment  or  decree  can  be  made  against  her  personally :  that 
her  contracts  can  be  satisfied  only  out  of  her  property,  and 

a  contract  created  an  interest  in  land.  This  would  be  so  if  the  contract 
■was  in  the  nature  of  an  appointment.  And  see  Shattock  v.  Shattock,  L.  R. 
2  Eq.  192;  Johnson  v.  Gallagher,  2  De  G.,  F.  &  J.  oU. 

'  Jones  V.  Harris,  9  Ves.  480  ;  Aguilar  i'.  Aguilar,  5  Mad.  414;  Bolton 
V.  Williams,  4  Bro.  Ch.  297;  2  Yes.  Jr.  138;  Johnson  v.  Gallagher,  3  De 
G.,  F.  &  J.  593;  Shattock  i-.  Shattock,  L.  K.  2  Eq.  182;  Callow  v.  Howie, 
1  De  G.  &  Sm.  531. 

2  Wright  V.  Chard,  4  Dr.  673. 


§§  659,  660,]       HOW  FAR  HER  CONTRACTS  ARE  BINDING.  253 

that  they  can  be  satisfied  out  of  her  property  only  when  she 
contracts  upon  the  faith  and  credit  of  her  separate  property. 
The  whole  position  is  anomalous,  and  has  been  produced  by 
the  conflicting  practices  of  courts  of  law  and  courts  of  equity. 
Vice-Chancellor  Kindersley  considers  the  law  in  a  ti-ansition 
state,  and  not  yet  established  clearly  in  all  points,  and  says, 
"  that  the  tendency  is,  having  put  a  married  woman  in  the 
position  of  a  single  woman  in  relation  to  her  se{)arate  prop- 
erty, to  carry  that  position  to  its  fullest  extent,  short  of  mak- 
ing her  personally  responsible."  ^  Lord  Justice  Turner  stated 
the  true  principles,  thus  far  established,  as  follows  :  "  In  order 
to  bind  her  separate  estate  by  a  general  engagement,  it  should 
appear  that  the  engagement  was  made  with  reference  to  and 
upon  the  faith  and  credit  of  that  estate  ;  and  the  question 
whether  it  was  so  or  not  is  to  be  judged  of  by  the  court,  upon 
all  the  circumstances  of  the  case."  ^ 

§  660.  It  is  thus  established  in  England,  that  a  wife's  gen- 
eral contracts  may  be  satisfied  out  of  her  separate  estate,  if 
they  were  entered  into  with  reference  to,  or  upon  the  faith  and 
credit  of  such  estate  ;  and  that  the  contract  of  a  married 
woman,  being  a  nullity  unless  made  with  reference  to  her 
separate  estate,  will  be  presumed  by  the  court,  unless  some- 
thing else  appears,  to  be  made  in  reference  to  her  separate 
estate,  and  therefore  binding  upon  it.^  This  rule  has  been 
sanctioned  and  adopted  in  the  States  of  Connecticut,^  Maryland,^ 

1  Wright  t'.  Chard,  4  Dr.  G85. 

*  Johnson  V.  Gallagher,  3  De  G.,  F.  &  J.  515,  approved  in  Leeds  Bank- 
ing Co.  12  Jur.  (n.  s.)  984. 

8  Ante,  §§  657-659. 

■•  Inilay  v.  Huntington,  20  Conn.  149.  Wells  v.  Thorman.  37  Conn. 
319;  Donald  v.  Plumb,  8  Conn.  447  ;  Leavitt  v.  Beirne,  21  Conn.  1. 

5  Chew  V.  Beall,  13  Md.  348;  Cook  v.  Husbands,  11  Md.  492.  The 
early  cases,  Tarr  v.  Willi:>ms,  4  Md.  Ch.  68;  Williams  v.  Donaldson,  4  ]\Id. 
Ch.  414;  and  Ikliller  v.  Williamson,  6  Md.  219,  were  the  other  way;  but  the 
last  case,  11  Md.  492,  setms  to  ettablish  the  English  rule.  Jackson  v.  West, 
22  Md.  21. 


254  TRUSTEES    FOR   MARRIED    WOMEN.  [CHAP,  XXII. 

Alabama,^  Kentucky,^  North  Carolina,-^  Missouri,*  Florida,^ 
and  Georgia.^  In  New  York,  Chancellor  Kent  held  that 
a  married  woman  is  not  to  all  intents  and  purposes  a  single 
woman  in  regard  to  her  separate  estate,  but  only  so  far  as  the 
instrument  of  settlement  or  trust  makes  lier  a  single  woman  ; 
and,  instead  of  holding  that  she  has  the  full  power  of  a  single 
woman  over  her  separate  estate,  unless  restrained  by  the  in- 
strument of  trust,  the  distinguished  chancellor  held  that  she 
has  no  power  unless  it  is  specially  given  ;  that  her  incapacity 
is  the  general  rule,  and  the  exception  is  to  be  strictly  shown 
in  every  case."  But  this  doctrine  was  overruled  on  appeal  ;^ 
and  a  modified  rule  has  been  acted  upon,  which  concedes  the 
power  of  the  married  woman  to  contract  debts  to  be  satisfied 
out  of  her  separate  estate,  unless  restrained  by  the  instrument 
of  conveyance,  but  limits  her  power  to  a  power  of  contracting 

'  Ozley  V.  Ikelheimer,  26  Ala.  382  ;  Forrest  ».  Robinson,  4  Porter,  44 ; 
Saddler  v.  Houston,  4  Porter,  208 ;  Bradford  v.  Greenway,  17  Ala.  797  ; 
Henry  v.  Smith,  17  Ala.  797  ;  Puryear  v.  Beard,  14  Ala.  122  ;  Puryear  v. 
Puryear,  16  Ala.  486;  Collins  i?.  Lavenberg,  19  Ala.  682;  Sprague  v.  Tyson, 
44  Ala.  338. 

*  Bell  V.  Kellar,  13  B.  Mon.  381;  Lillard  v.  Turner,  16  B.  Mon.  374; 
Coleman  v.  Woolley,  10  B.  Mon.  320;  Jarmon  v.  Wilkinson,  7  B.  Mon. 
293.  In  Burch  v.  Breckenridge,  16  B.  Mon.  482,  it  was  held  that  the  gen- 
eral contract  of  a  married  woman  could  not  be  enforced  against  h^r  separate 
real  estate,  unless  it  was  in  writing.  Long  v.  White,  5  J.  J.  Marsh.  226. 
Now  altered  by  Rev.  Stat.  c.  47,  §  17;  Daniel  v.  Robinson,  18  B.  Mon. 
301 ;  Williamson  v.  Williamson,  18  B.  Mon.  329-385;  Stocker  v.  Whitlock, 
3  Met.  244  ;  Hanley  v.  Downing,  4  Met.  95. 

3  Harris  v.  Harris,  7  Ired.  Eq.  311  ;  Frazier  v.  Brownlow,  3  Ired.  Eq. 
237;  Newlin  v.  Freeman,  4  Ired.  Eq.  312. 

*  Whitesides  v.  Carman,  23  Mo.  457  ;  Segond  v.  Garland,  23  Mo.  547  ; 
Coats  V.  Rot>inson,  10  Mo.  757;  Claflin  v.  Van  Wagoner,  30  Mo.  252. 

*  Lewis  V.  Yale,  4  Flor.  418. 

«  Wylly  V.  Collins,  9  Ga.  223;  Roberts  v.  West.  15  Ga.  123;  Fears  v. 
Brooks,  12  Ga.  195;  Weeks  v.  Sego,  9  Ga.  201. 

'  Methodist  Church  v.  Jaques.  3  John.  Ch.  78. 

8  Ibid.;  17  John.  548-585;  Dyett  v.  Coal  Co.  7  Paige,  9;  20  Wend. 
670;  Powell  v.  Murray,  2  Edw.  Cli.  636  ;  Wadham  r.  Society,  &f.,  2  Kern. 
415  ;  Albany  Ins.  Co.  v.  Bay,  4  Comst.  9  ;  Cruger  v.  Cruger,  5  Barb.  227  ; 
10  Barb.  597. 


§§  660,  661.]       HOW  FAR  HER  CONTRACTS  ARE  BINDING.  255 

in  relation  to  her  separate  estate,  or  for  the  benefit  of  such 
estate,  or  for  her  own  personal  benefit  upon  the  faith  and 
credit  of  such  estate.-^  By  this  rule  her  general  engagements, 
which  have  no  reference  at  the  time  to  her  separate  estate,  or 
to  her  own  benefit,  cannot  be  enforced  against  such  separate 
property .2  In  Virginia,  the  weight  of  authority  seems  to  be 
in  favor  of  the  English  rule.^  In  Vermont,  the  rule  is  sub- 
stantially the  same  as  the  doctrine  followed  in  New  York.^ 
In  Wisconsin,  the  rule  is  substantially  the  same  as  in  New 
York.-^     And  so  in  New  Jersey.^ 

§  661.  In  Pennsylvania,  the  doctrine  held  by  Chancellor 
Kent,  in  the  case  of  ^Methodist  Church  v.  Jaques,  has  been 
fully  adopted  and  firmly  settled  by  the  courts.  By  the  prac- 
tice in  that  State,  a  married  woman  cannot  sell,  convey, 
alienate,  or  in  any  way  charge  her  separate  estate,  unless 
such  power  is  expressly  given  to  her  in  the  deed  of  trust  or 
settlement.  Therefore  no  contract  made  by  her,  whether  it 
is  a  general  engagement  by  bond,  note,  or  bill  of  exchange, 
or  a  special  contract  in  relation  to  her  separate  estate,  is 
valid,  and  it  cannot  be  enforced  in  any  manner."     In  South 

*  Ibid.;  Gardners.  Gardner,  7  Paige,  112;  Cuinming  r.  Williamson,  1 
Sandf.  17;  Dickennan  v.  Abrahams,  21  Barb.  551;  Coon  v.  Brook,  21 
Barb.  5-10. 

2  Curtis  V.  Engel,  2  Sand.  287;  Knowles  v.  McCamloy,  10  Paige,  343; 
Vanderlieyden  v  Mallory,  3  Barb.  Ch.  10;  1  Conist. -153 ;  Yale  v.  Dederer, 
18  N.  Y.  265;  22  N.  Y.  456,  overruling,  s.  c.  21  Barb.  286  ;  L'Amoureu.x 
V.  Van  Rensselaer,  1  Barb.  Oh.  34;  Rogers  v.  Ludlow,  3  Sand.  104;  Corn 
Exchange  v.  Babcock,  57  Barb.  222,  231  ;  Hey  wood  i;.  City  of  HnlTalo,  14 
N.  Y.  540;  Barnett  v.  Liditenstein,  39  Barb.  1!)4;  Kvho  v.  Tabor,  :>'2 
Barb.  125;  White  v.  McXiitt,  33  N.  Y.  371  ;  Noyes  v.  Blakeman,  3  Sand. 
531. 

*  Nixon  V.  Rose,  12  Grat.  425;  Woodson  v.  Perkins,  5  Grat.  346.  But 
Tucker  P.,  in  Williamson  v.  Beekman,  8  Leigh,  20,  expressed  a  diiFerent 
opinion. 

■•  Frary  v.  Booth,  37  Vt.  78;  Partridge  v.  Stocker,  36  Yt.  108. 

*  Todd  V.  Lee,  15  Wis.  365;   16  Wis.  480. 
«  Perkins  v.  Elliott.  23  X.  J.  K<].  frJi]. 

'  Lancaster  v.  Dolan,    1    Kawle,    231;  Lyne  v.  Crouse,    1  Barr,    111; 


256  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

Carolina,  in  the  case  of  Ewing  v.  Smith ,^  the  English  rule 
was  at  first  estal)lished  ;  but  the  decision  in  that  case  was 
reversed,  and  the  rule,  as  held  in  Pennsylvania,  was  laid  down 
and  is  now  steadily  acted  on.^  But  a  contract,  whether  made 
by  the  wife  or  trustee,  for  tlie  protection,  preservation,  or 
benefit  of  the  trust  estate,  or  in  furtherance  of  the  pur- 
poses of  the  trust,  can  be  enforced. ^  The  rule,  as  held  in 
Pennsylvania  and  South  Carolina,  is  also  held  in  Rhode 
Island,^  Tennessee,-^  and  Mississippi.^  In  New  Hampshire, 
her  separate  estate  is  not  bound  by  a  general  engagement,'^ 
nor  is  it  in  Massachusetts.^ 

§  662.  No  action  at  law  can  be  maintained,  upon  her  con- 
tracts against  a  married  woman  personally,  although  she  is 
entitled  to  the  beneficial  interests  of  property  in  trust  for  her 
sole  and  separate  use  ;  nor  can  a  bill  in  equity  be  filed  against 
a  married  woman  as  a  sole  defendant  in  order  to  make  her 
personally  liable.  There  is  no  case  in  which  a  court  has  made 
a  personal  decree  against  a  married  woman.     She  may  make 

Rogers  v.  Smith,  4  Barr,  93;  Thomas  v.  Fohvell,  2  Whart.  11 ;  Dorance  v. 
Scott,  3  Whart.  309;  Wallace  v.  Coston,  9  Watts,  137. 

'  Ewing  V.  Smith,  3  Des.  417. 

2  Ibid.;  Frazier  tJ.  Center,  1  McCord,  Ch.  270;  Magwood  v.  Johnston, 
1  Hill,  Ch.  228;  Robinson  v.  Dart,  Dudl.  Eq.  128;  Clark  v.  Makenna, 
Cheves,  Eq.  163;  Reid  v.  Lamar,  1  Strob.  Eq.  27;  Rochell  v.  Tompkins, 
1  Strob.  Eq.  114;  Adams  v.  Mackey,  6  Rich.  Eq.  75;  Mayer  v.  Galluchat, 
6  Rich.  Eq.  1  ;  Brown  v.  Postall,  4  Rich.  Eq.  71. 

2  Cater  r.  Eveleigh,  4  Des.  19;  James  v.  Mayrant,  4  Des.  591;  Mont- 
gomery V.  Eveleigh,  1  McCord,  2(57  ;  Magwood  v.  Johnston,  1  Hill,  Ch. 
228;  Clark  v.  Makenna,  Cheves,  Eq.  1G3;  Reid  r.  Lamar,  1  Strob.  Eq.  27; 
Rachell  v.  Tompkins,  1  Strob.  Eq.   114;  Adams  v.  Mackey,  6  Rich.  Eq.  75. 

*  Mctcalf  V.  Cook,  2  R.  I.  355. 

'  Ware  v.  Sharp,  1  Swan,  489;  Morgan  v.  Elam,  4  Yerg.  375;  Mar- 
slall  V.  Stevens,  8  Humph.  159;  Litton  v.  Baldwin,  8  Humph.  209. 

**  Armstrong  v.  Stoval,  26  Miss.  275;  Dotey  v.  Mitchell,  9  Sm.  «&  M. 
435;  Montgomery  v.  Agricultural  Bank,  10  Sm.  &  M.  567;  Dickson  v. 
Miller,  II  Sm.  &  M.  594;  Prewttt  v.  Land,  36  Miss.  495. 

'  Bailey  v.  Pearson,  29  N.  H.  77. 

8  Willard  v.  Eastman,  15  Gray,  328 ;  Rogers  v.  Ward,  8  Allen,  388. 


§§  661,  662.]      REMEDIES   UPON   HER   CONTRACTS.  257 

her  separate  property  answerable  for  lier  engagements ;  but 
where  her  trustees  are  not  made  parties  to  a  bill,  and  no  par- 
ticular fund  is  sought  to  be  charged,  but  only  a  personal  decree 
is  sought  against  her,  the  bill  cannot  be  sustained.^  But  the 
party  claiming  a  debt  must  file  a  bill  against  her  and  her  trus- 
tees, and  must  pray  payment  of  his  demand  out  of  her  personal 
estate  in  the  hands  of  trustees,  to  which  she  is  absolutely  en- 
titled, and  also  out  of  the  income  of  her  real  estate,  including 
arrears  of  rent  and  accruing  interest  or  rents,  if  there  is  no 
clause  against  anticipation,  until  the  claim  and  costs  have  been 
satisfied.^  The  death  of  the  husband,  either  before  or  while 
the  suit  is  pending,  will  not  defeat  it,  nor  change  its  character  ; 
for  although  the  death  of  the  husband  puts  an  end  to  the  sepa- 
rate use,  and  gives  the  woman  an  entire  and  perfect  right  of 
dealing  as  a  single  woman,  yet,  if  the  contracts  were  made 
while  she  was  married,  no  judgments  or  decrees  can  ever  be 
entered  against  her  personally ;  for  at  law  such  contracts  have 
no  validity,  and  the  death  of  the  husband  does  not  give  them 
a  validity  which  they  cannot  otherwise  have.^  Determined 
cases  go  thus  far,  that  the  general  engagements  of  the  wife 
operate  upon  her  personal  property,  and  upon  the  rents  and 
profits  of  her  real  estate,  and  her  trustees  are  obliged  to  apply 
her  personal  estate,  and  the  rents  and  profits  of  real  estate 
when  they  arise,  to  the  satisfaction  of  such  general  engage- 
ments ;  but  courts  do  not  use  any  direct  processes  against  tlie 
separate  estate  of  the  wife,  and  the  manner  of  reaching  her 
separate  property  is  by  decree  to  bind  the  trustees  to  apply  the 
personal  estate  in  their  hands,  and  the  rents  and  profits  of  the 

1  Sir  T.  Plumer,  in  Francis  v.  Wigzell,  1  Mad.  262. 

*  Hulme  V.  Tenant,  1  Bro.  Ch.  20;  Standford  v.  Marshall,  2  Atk.  G8 ; 
Murray  v.  Barlee,  4  Sim.  82 ;  3  M.  &  K.  209 ;  Field  v.  Sowle,  4  Russ.  112 ; 
Nantes  v.  Corrock,  9  Ves.  182;  Bullpin  v.  Clarke,  17  Ves.  365;  Jones  v. 
Harris,  9  Ves.  492;  Stuart  v.  Kirkwall,  3  Mad.  387;  Robertson  r.  Johnson, 
36  Ala.  197. 

^  Field  V.  Sowle,  4  Russ.  112;  Ileatly  v.  Thomas,  15  Yes.  596;  Kenge 
15.  Delavall,  1  Vern.  326. 

VOL.  II.  17 


258  TRUSTEES    FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

real  estate,  according  to  the  justice  of  the  engagement  to  be 
carried  into  effect.  There  is  no  case  where  the  remedy  against 
the  wife  has  been  carried  to  the  extent  of  decreeing,  that  the 
trustees  shall  sell  or  mortgage  her  separate  real  estate  to  raise 
money  to  meet  her  general  engagements. ^  But  Mr.  Lewin 
thinks,  that  if  the  instrument  of  trust  is  so  worded  as  to  place 
the  entire  interest  and  inheritance  of  the  real  estate  at  her  dis- 
posal, the  general  engagements  of  the  wife  may  bind  the  whole 
corpus  of  the  real  estate,  whether  corjnis  or  income.^  In  all 
proceedings  to  enforce  the  general  engagements  of  a  married 
woman  upon  her  separate  property,  it  must  be  remembered 
that  such  engagements  are  enforced  in  equity,  not  because  a 
married  woman  can  make  a  valid  contract  in  law  or  equity, 
but  because  in  justice  and  equity  a  married  woman's  honest 
engagements  ought  to  be  answered.^  Of  course  the  propo- 
sitions of  this  section  apply  only  in  those  States  where  the 
English  doctrine  prevails.  They  have  no  application  in  those 
States  where  a  married  woman  can  make  no  charge  upon  her 
separate  estate  not  specially  authorized  in  the  instrument  of 
settlement. 

§  663.  Two  conflicting  principles  are  struggling  in  the 
courts :  one  is,  that  the  engagements  of  the  wife  are  charges 
on  her  separate  property,  equivalent  to  so  many  assignments 
or  appointments,  to  be  satisfied  out  of  her  separate  property  in 
the  order  of  their  date ;  *  the  other  is,  that  the  wife's  general 
contracts  are  not  charges,  but  create  a  liability,  the  remedy 
for  which,  if  the  woman  is  single,  is  against  the  person  ;  but, 
if  she  is  married,  there  is  no  remedy  against  the  person,  but 

'  Per  Lord  Thurlow  in  Hulme  v.  Tenant,  1  Bro.  Ch.  20 ;  Broughton  v. 
James,  1  Coll.  26;  Nantes  v.  Carrock,  9  Ves.  189. 

^  Lewin  on  Trusts,  5-48,  552. 

3  Cummins  v.  Sharpe,  21  Ind.  331;  Pentz  v.  Simonson,  2  Beasl.  232; 
Glass  V.  Warwick,  40  Penn.  St.  140.  But  see  Maclay  v.  Love,  25  Cal.  367  ; 
Hanly  v.  Downing,  4  Met.  (Ky.)  95. 

*  Sbattock  V.  Shattock,  L.  R,  2  Eq.  182. 


§§  662-664.]       REMEDIES    UPON    HER   CONTRACTS.  259 

the  law  gives  an  equitable  execution  against  her  separate 
property.  On  this  last  principle,  which  is  the  one  generally 
adopted,  her  separate  property  is  liable,  pari  passu,  as  assets.^ 
The  remedy  being  wholly  equitable,  the  statute  of  limitations 
does  not  apply  to  a  proceeding  against  the  separate  property 
of  the  married  woman  ;  ^  and  in  case  the  nature  of  the  property 
is  such  that  the  legal  title  to  it  cannot  be  reached  by  a  legal 
execution,  the  equitable  interest  cannot  be  reached  by  a  decree 
in  equity.^  Thus  if  there  has  been  a  bona  fide  assignment,  or 
conveyance,  or  mortgage  to  a  purchaser,*  or  if  there  is  a  clause 
in  the  settlement  against  anticipation, °  the  equitable  execution 
cannot  reach  the  property.  Nor  can  charges  after  her  decease 
be  imposed  upon  her  separate  estate ;  and  as  a  husband  is 
bound  to  bury  his  wife,  it  would  seem  that  her  separate  estate 
could  not  be  made  liable  for  her  funeral  expenses.^ 

§  664.  The  savings  and  accumulations  by  a  married  woman, 
out  of  her  separate  estate,  are  governed  by  the  same  rules  as 
the  separate  estate  itself,  as  "  the  sprout  is  to  savor  of  the  root 
and  go  the  same  way."  "  The  same  rule  applies  to  the  savings 
out  of  an  allowance  for  maintenance  on  separation.^     But  sav- 

1  Anon.  18  Ves.  258;  Johnson  v.  Gallagher,  3  De  G.,  F.  «&  J.  520. 
""  Norton  v.  Turville,   2  P.  Wms.  144 ;  Vaughan  v.  Walker,  G  Ir.  Ch. 
471 ;  8  Ir.  Ch.  458. 

^  Nantes  v.  Carrock,  9  Ves.  182. 

*  Johnson  v.  Gallagher,  3  Do  G.,  F.  &  J.  620. 

*  Murray  v.  Barlee,  4  Sim.  95. 

^  Gregory  v.  Lockyer,  C  Mad.  90. 

'  Gore  V.  Knight,  2  Vern.  535;  Malony  v.  Kennedy,  19  Sim.  254  ; 
Humpherey  v.  Richards,  2  Jur.  (n.  s.)  432;  Barron  v.  Barron,  24  Vt.  375; 
Churchill  v,  Dibben,  9  Sim.  447,  n. ;  2  Kcnyon,  85;  Messenger  v.  Clarke, 
6  Exch.  392;  Merritt  v.  Lyon,  3  Barb.  110;  Hoot  v.  Sorrell,  11  Ala.  386  ; 
Kee  V.  Vasser,  2  Ired.  Eq.  553;  Gentry  v.  McReynolds,  12  Mo.  533; 
Rogers  v.  Fales,  5  Barr,  104 ;  Yardley  v.  Raub,  5  Whart.  123 ;  Towers  v. 
Hagner,  3  Whart.  57 ;  Young  i\  Jones,  9  Humph.  551 ;  Rush  v.  Vought, 
55  Penn.  St.  437  ;  Miller  v.  Williams,  5  Md.  226,  236. 

®  Brooke  v.  Brooke,  25  Beav.  347 ;  Messenger  v.  Clarke,  5  E.xch. 
388. 


260  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

ings  out  of  money  given  by  the  husband  to  the  wife  for  house- 
hold and  personal  purposes  belong  to  the  husband. ^ 

§  665.  If  the  husband  and  wife  live  together,  and  the  hus- 
band receives  from  the  trustees  the  income  of  the  wife's  sepa- 
rate estate,  the  wife  or  her  representatives  cannot  claim  to 
recover  from  the  husband,  or  his  estate,  more  than  one  year's 
income.^  Whether  one  year's  income  can  be  recovered  or  not 
is  a  matter  of  great  conflict  of  opinion  and  authority  in  Eng- 
land. There  are  many  cases  that  hold  that  one  year's  income 
can  be  recovered,^  and  as  many  that  it  cannot.'*  Mr.  Lewin 
says,  that  the  better  opinion  is,  independent  of  authority,  that 
the  wife  can  recover  nothing ;  and  lie  pertinently  asks  if  she 
could  recover  any  thing  of  the  trustees  on  the  ground  of  a  mis- 
application of  the  income.  The  principle  is,  that  the  court 
presumes  the  consent  of  the  wife  to  the  husband's  receipt  de 
anno  in  annum,  and  the  wife's  assent  is  presumed  to  continue 
until  revoked  by  something  expressed  or  implied.^  If,  there- 
fore, the  wife  did  not  in  fact  consent,  but  required  the  separate 

>  Barrack  v.  M'CulIock,  3  K.  &  J.  114;  Mews  v.  Mews,  15  Beav.  529. 

2  Hayue  v.  Little,  26  Beav.  ]  ;  Ex  parte  Elder,  2  Mad.  286  n. ;  Brodie 
V.  Barry,  2  Ves.  &  B.  36  ;  Rowley  v.  Unwin,  2  K.  &  J.  138. 

3  Powell  V.  Hankey,  2  P.  Wms.  82;  Fowler  v.  Fowler,  3  P.  Wins.  353; 
Squire  v.  Dean,  -4  Bro.  Ch.  325  ;  Smith  v.  Camelford,  2  Ves.  Jr.  716  ;  Dol- 
biac  V.  Dolbiac,  16  Ves.  12G  ;  Arthur  v.  Arthur,  11  Ir.  Eq.  511. 

*  Burdon  v.  Burdon,  2  Mad.  286 ;  Warwick  v.  Edwards,  1  Eq.  Ca.  Ab. 
170;  Thomas  v.  Bennett,  2  P.  Wms.  341;  Townshend  v.  Windham,  2  Ves. 
7;  Peacock  v.  Monk,  2  Ves.  190;  Aston  v.  Aston,  1  Ves.  267;  Parkes  v. 
White,  11  Ves.  225;  Brodie  v.  Barry,  2  Ves.  »&  B.  36;  Thrupp  v.  Harman, 

3  M.  &  K.  613  ;  Lea  v.  Grundy,  1  Jur.  (n.  s.)   953;   Corbally  v.  Grainger, 

4  Ir.  Eq.  173 ;  Mackey  v.  Maturin,  15  Ir.  Eq.  150  ;  Howard  v.  Digby, 
2  CI.  &  Fin.  643;  4  Sim.  601;  Arthur  u.  Arthur,  11  Ir.  Eq.  513;  Beres- 
ford  V.  Armagh,  13  L.  J.  (n.  s.)  Ch.  235  ;  Caton  v.  Rideout,  1  Mac.  &  G. 
519  ;  2  H.  &  Tw.  55. 

*  Lewin  on  Trusts,  550 ;  Caton  v.  Rideout,  2  H.  &  Tw.  41 ;  McGlinsey's 
App.  14  S.  &  R.  64 ;  Towers  v.  Hagner,  3  Whart.  48  ;  Naglee  v.  Inger- 
soll,  7  Barr,  204 ;  Yardley  v.  Raub,  5  Whart.  123 ;  Methodist  Church  v. 
Jaques,  3  John.  Ch.  77. 


§§  664-666.]       WHERE  HUSBAND  RECEIVES  THE  PROPERTY.         261 

income  to  be  paid  to  herself,  the  court  will  give  her  the  arrears 
out  of  her  husband's  estate,  back  to  the  time  of  her  dissent.^ 
But  the  court  will  not  pay  any  attention  to  idle  complaints  not 
seriously  insisted  upon,  but  will  demand  very  clear  evidence  of 
an  earnest  and  persistent  claim  on  the  part  of  the  wife.^  If 
the  income  has  not  come  to  the  hands  of  the  husband,  but  is 
still  in  the  hands  of  a  receiver,  the  acquiescence  of  the  wife 
will  not  be  presumed,  and  it  will  belong  to  her.^  If  the  wife 
is  insane  or  incapable  of  assenting,  the  husband's  estate  must 
account  for  the  whole  income  received  by  him;  but  his  estate 
will  be  allowed  in  equity  for  payments  made  for  his  wife's  benefit 
which  ought  to  have  fallen  upon  her  separate  estate.*  And  the 
court  may  order  the  income  of  an  insane  woman's  estate  to  be 
applied  to  her  support  where  her  husband  is  in  indigent  circum- 
stances.^ But  there  is  a  distinction  between  a  married  woman's 
separate  estate  and  pin-money  allowed  to  a  wife  for  her  personal 
use  and  ornament,  and  it  has  been  held  that  there  can  be  no 
claim  upon  the  husband  or  his  estate  for  any  arrearages  in 
such  an  allowance.*^  So  there  can  be  no  claim  upon  his  estate 
if  the  will  directs  the  income  to  be  paid  to  him." 

§  666.  If  a  husband  receives  the  capital  fund  of  his  wife's 
separate  property,  there  is  no  presumption  that  she  intended  to 
give  or  transfer  it  to  him,  but  he  is  prima  facie  a  trustee  for 
her,  and  a  gift  from  her  to  him  will  not  be  presumed  without 

'  Ridout  V.  Lewis,  1  Atk.  269;  Moore  v.  Moore,  2  Atk.  272 ;  Moore  i'. 
Scarborough,  2  Eq.  Ca.  Ab.  156 ;  Parker  v.  Brooks,  9  Ves.  583. 

'  Thrupp  V.  Harnian,  3  M.  &  K.  512;  Corball}'  v.  Grainger,  i  Ir.  Eq. 
173. 

8  Foss  V.  Foss,  15  Ir.  Eq.  215. 

*  Att'y-Gen.  v.  Parnther,  3  Bro.  Ch.  441 ;  4  Brock.  409  ;  Howard  v. 
Digby,  2  CI.  &  F.  671 ;  Xettlesliip  v.  Nettleship,  10  Sim.  236. 

*  Erisman  v.  Directors  of  the  Poor,  47  Penn.  St.  509. 

«  Howard  v.  Digby,  2  CI.  &  F.  634 ;  4  Sim.  588  ;  8  Bligh,  N.  P.  224  ; 
Aston  V.  Aston,  1  Ves.  267;  Fowler  v.  Fowler,  3  P.  Wms.  355;  Barrack  v. 
M'CuUock,  3  K.  &  J.  110 ;  Miller  v.  Williams,  5  Md.  219,  231. 

'  Maston  v.  Barnard,  33  Ga.  520. 


262  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

clear  evidence  ;  ^  but  if  the  husband  uses  the  property  in  his 
business,  or  for  the  support  of  his  family,  with  her  knowledge 
and  assent,  a  gift  may  be  inferred  in  the  absence  of  a  contrary 
agreement.^  But  if  there  is  an  express  agreement  that  the 
goods,  furniture,  or  other  property  into  which  the  wife's  sepa- 
rate estate  is  converted  by  the  husband,  shall  remain  the  prop- 
erty of  the  wife,  her  interest  continues,  and  will  be  protected 
by  the  law  ;  ^  or,  if  the  property  still  stands  in  the  name  of  the 
trustee,*  The  mere  concurrence  of  the  wife  in  the  receipt  of  a 
legacy  by  the  husband,  given  to  her  separate  use,  is  not  a  gift 
to  him.° 

§  667.  Where  the  absolute  beneficial  interest  in  the  trust 
fund  is  given  to  the  separate  use  of  a  married  woman,  without 
any  restriction  or  direction  as  to  the  mode  of  possession  or  en- 
joyment, or  in  such  manner  that  the  statute  of  uses  would  exe- 
cute the  use  or  title  in  her.  if  it  was  real  estate,  she  is  entitled 
to  call  upon  the  trustees  for  an  immediate  conveyance  or  trans- 
fer of  the  legal  title  to  her  ;  and,  if  they  refuse,  they  will  be 
decreed  to  convey  with  costs.^  It  is  immaterial  that  the  trust 
was  created  while  she  was  single  ;  for  marriage  has  no  effect 
upon  her  separate  estate  in  that  respect.'  So  where  the  abso- 
lute beneficial  interest  is  subject  to  the  control  and  alienation 
of  the  wife,  the  concurrence  of  the  trustee  is  not  necessary  to 
the  validity  of  an  alienation  by  her,  unless  it  is  made  requisite 
by  the  terms  of  the  trust.^     The  trustees  will  be  compelled 

^  Rich  V.  Cockell,  9  Ves.  369;  Lamprey  v.  Watson,  43  Ala.  377;  Rich- 
ardson V.  Stodder,  100  Mass.  528 ;  Marsh  v.  Marsh,  43  Ala.  677. 

2  Gardner  v.  Gardner,  1  Gif.  126  ;  McGlinsey's  App.  1-4  S.  &  R.  64; 
Shirley  v.  Shirley,  9  Paige,  363. 

3  faggard  v.  Talcott,  2  Edw.  628 ;   Shirley  v.  Shirley,  9  Paige,  363. 

*  Yardley  v.  Raub,  5  Whart.  117. 

"  Rowe  V.  Rowe,  2  De  G.  &  Sm.  294 ;  12  Jur.  909. 

6  Thorby  v.  Yates,  1  N.  C.  C.  438  ;  Taylor  v.  Glanville,  3  Mad.  179. 

7  Ibid. 

*  Grigby  v.  Cox,  1  Ves.  518;  Essex  v.  Atkins,  14  Ves.  552;  Corgell  v. 
Dunton,  7  Barr,  532. 


§§  666-668.]        DISPOSAL  of  her  property.  263 

to  give  legal  effect  to  any  such  alienation  by  transferring  the 
property/  even  if  it  is  a  gift  and  transfer  to  the  husband, 
or  for  his  benefit :  ^  for  a  direct  gift  to  the  husband  himself 
will  be  sustained  if  not  made  under  the  improper  or  undue 
influence  of  the  husband.^  The  court  will  investigate  the  cir- 
cumstances under  which  a  gift  is  made  to  the  husband,  and 
if  there  appears  to  be  any  suspicious  circumstances  attend- 
ing the  gift,  the  court  will  refuse  to  carry  it  into  effect.'*  If 
a  married  woman  pledges  or  mortgages  her  separate  estate  for 
her  husband's  debts,  .she  is  entitled  to  all  the  rights  of  a  surety 
against  him,  and  to  security  for  her  liability  out  of  his  estate." 
The  wife  cannot  consent  to  a  loan  to  the  husband  in  the  future : 
her  consent  must  accompany  the  act.^  If  a  trustee  mortgage 
an  estate  for  the  purchase-money  at  the  same  time  that  he  takes 
a  legal  title  in  trust,  it  will  be  a  valid  transaction.' 

§  668.  A  married  woman  has  full  power  to  dispose  of  her 
separate  estate  by  will,  or  appointment  in  the  nature  of  a  will, 
unless  restrained  by  the  instrument  of  trust ;  ^  and  her  absolute 
equitable  interests  will  be  disposed  of  as  directed  in  the  will. 

^  Marrick  v.  Grice,  3  Nev.  52. 

*  Standford  v.  Marshall,  2  Atk.  69  ;  Parkes  v.  White,  11  Ves.  209; 
Essex  V.  Atkins,  14  Ves.  542;  Hughes  t;.  Wells,  9  Hare,  749. 

^  Freeman  v.  Moore,  1  Bro.  P.  C.  237  ;  Frederic  v.  Hatwell,  1  Cox, 
193;  Parkes  u.  White,  11  Ves.  209;  Dallam  v.  Wampole,  1  Pet.  C.  C. 
116 ;  Nedby  v.  Nedby,  5  De  G.  &  S.  377 ;  Jaques  v.  Methodist  Church, 
17  John.  548;  Whitall  v.  Clark,  2  Edw.  Ch.  149;  Cruger  v.  Cruger,  5 
Barb.  225;  Hoover  v.  Samaritan  Soc.  4  Whart.  445;  Merriam  v.  Harsen, 
2  Barb.  Ch.  232. 

*  Pybus  V.  Smith,  1  Ves.  Jr.  189 ;  Nedby  r.  Nedby,  5  De  G.  &  S. 
577. 

»  Hudson  V.  Carmichael,  23  L.  J.  Ch.  893 ;  Sheidle  v.  Weishlee,  16 
Penn.  St.  134  ;  Neimawicz  v.  Gahn,  3  Paige,  614;  Knight  v.  Whitehead, 
26  Miss.  246. 

«  Child  r.  Child,  20  Beav.  50;  Taylor  v.  Taylor,  4  Jur.  (x.  s.)  1218. 

'  Marrick  v.  Grice,  3  Nev.  52. 

*  Porcher  v.  Daniel,  12  Rich.  Eq.  349 ;  Fettiplace  v.  Gorges,  1  Ves.  Jr. 
46 ;  Rich  v.  Cockell,  9  Ves.  369 ;  Humpherey  v.  Richards,  2  Jur.  (n.  s.) 
432  ;  Moore  v.  Morris,  4  Dr.  38. 


264  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

And  she  may  revoke  her  will.^  Where  the  ppwer  to  dispose  of 
her  estate  is  given  to  her  by  will,  she  need  not  refer  to  such 
will  in  her  own  will.^  If  she  exceed  the  power  given  her,  her 
whole  appointment  will  be  void,  and  not  the  simple  excess.^ 
The  usual  course  of  administration  will  be  observed  in  regard 
to  such  estates.*  If  she  dies  without  disposing  of  her  separate 
estate,  her  husband  will  take  her  equitable  personal  estate,  in 
the  same  manner  as  he  takes  her  legal  personal  estate.  If 
administration  is  necessary  to  reach  any  part  of  her  personal 
estate,  he  is  entitled  to  administration,  and  will  take  the  prop- 
erty to  his  own  use;  or  if  another  person  is  appointed  admin- 
istrator, such  administrator  must  pay  over  the  proceeds  to  the 
husband  on  final  settlement.  ^ 

§  669.  Where  a  married  woman  procures  or  induces  the 
trustee  to  commit  a  breach  of  trust,  which  results  in  the  loss 
of  the  fund  in  which  she  has  an  interest  to  her  separate  use, 
the  court  treats  her  act  as  an  alienation  of  the  estate,  so  far  as 
she  had  power  to  bind  it.^  So  where  a  married  woman,  as  a 
trustee,  had  wasted  the  trust  estate,  the  ordinary  right  of  re- 
tainer may  be  exercised  against  her  separate  estate  under  the 

1  Hawksley  v.  Barrow,  L.  R.  1  P.  &  D.  U7. 

*  Porcher  v.  Daniel,  12  Rich.  Eq.  349 ;  Li  re  Gratwick's  Trusts,  L.  R. 
1  Eq.  177 ;  Att'y-Gen.  v.  Wilkinson,  L.  R.  2  Eq.  816. 

^  In  re  Brown's  Trusts,  L.  R.  1  Eq.  74. 

"  Norton  v.  Turvill,  2  P.  Wms.  144 ;  Tathain  v.  Drumraond,  2  Hera.  & 
Mill.  262. 

"  Prandley  v.  Fielder,  2  M.  &  K.  57 ;  Molony  v.  Kennedy,  10  Sim. 
264;  Bird  v.  Peagrum,  13  C.  B.  639;  Johnstone  v.  Lumb,  15  Sim.  308; 
Drury  v.  Scott,  4  Y.  &  C.  264  ;  Stead  v.  Clay,  1  Sim.  204 ;  Stewart  v. 
Stewart,  7  John.  Ch.  229:  McKennan  v.  Phillips,  6  Whart.  576 ;  Brown  v. 
Brown,  6  Humph.  127;  Rogers  v.  White,  1  Sneed,  60;  Cox  v.  Coleman, 
13  B.  Mon.  453;  Brown  v.  Alden,  14  B.  Mon.  141  ;  Farie's  App.  23  Penn. 
St.  29 ;  McCosker  v.  Golden,  1  Brad.  Sur.  64. 

6  Crosby  v.  Church,  3  Beav.  485 ;  Hanchett  v.  Briscoe,  22  Beav.  496. 
But  see  Whistler  v.  Newman,  4  Ves.  129,  and  observations  of  Lord  Eldoa 
on  it  in  Parkes  v.  White,  11  Ves.  223 ;  Brewer  v.  Swirley,  2  Sni,  &  Gif.  219  ; 
Hughes  V.  Mills,  9  Hare,  772,  773  ;  Mara  v.  Manning,  2  Jones  &  Lat.  311. 


§§  668-670.]        RESTRAINT   UPON    ANTICIPATION.  265 

same  instrument.^  So  if  she  misemploys  or  misapplies  any  of 
the  trust  property,  her  own  interests  under  the  same  instru- 
ment may  be  held  to  make  good  the  loss.^  But  if  there  is  a 
clause  against  anticipation  in  the  instrument,  no  sucli  remedy 
can  be  applied. ^ 

§  670.  A  married  woman  may  be  restrained  by  the  terms 
of  the  trust  from  alienating  or  anticipating  the  income  of  her 
separate  estate,  during  her  present  or  any  future  coverture. 
The  validity  of  such  restraints  is  now  well  established.*  The 
courts  did  not  sustain  the  doctrine  until  the  words  of  the  re- 
striction became  so  explicit  that  there  was  no  escape,  except  in 
declaring  such  restrictions  illegal.^  Thus  if  the  limitation  is 
simply  to  her  sole  and  separate  use,*^  or  to  pay  from  time  to 
time  upon  her  receipt  under  her  own  proper  hand,'  or  upon  her 
personal  appearance,^  the  wife  is  left  at  liberty  to  sell  or  antici- 
pate her  interest,  as  such  expressions  are  only  the  naming  of 
some  of  the  incidents  of  the  gift.^  There  are  generally  some 
negative  words,  as  "  not  by  anticipation,"  inserted  in  settle- 
ments, and  it  has  been  said  that  they  are  necessary ;  ^^  but  it  is 
sufficient,  if  an  intention  to  restrain  anticipation  can  be  gathered 
from  the  whole  instrument,^^  as  where  the  direction  is  to  pay  to 

1  Pemberton  v.  McGill,  1  Dr.  &  Sin.  266. 

*  Clive  V.  Carew,  1  John.  &  Hem.  199. 
8  Ibid. 

*  Jackson  v.  Hobhouse,  2  Mer.  488;  Parkes  v.  White,  11  Ves.  221; 
TuUett  V.  Armstrong.  1  Beav.  23 :  4  M.  &  Cr.  393 ;  Jolhmds  u.  Burdett, 
33  L.  J.  Ch.  471 ;  2  De  G.,  J.  &  S.  79. 

*  Hulme  V.  Tenant,  1  Bro.  Ch.  16 ;  Pybus  v.  Smith,  3  Bro.  Ch.  340  ;  1 
Ves.  Jr.  189.  «  Ibid. 

">  Ibid. ;  Ellis  v.  Atkinson,  3  Bro.  Ch.  565,  568;  Brown  v.  Lake,  14  Ves. 
302;  Acton  v.  White,  1  S.  &  S.  429;  Witts  v.  Dawkins,  12  Ves.  501; 
Wagstaff  V.  Smith,  9  Ves.  520;  Sturgis  v.  Corp,  13  Ves.  190;  Scott  v. 
Davis,  4  M.  &  Cr.  87  ;  Hovey  v.  Blakeman,  9  Ves.  524. 

8  Ross's  Trust,  1  Sim.  (n.  s.)  106. 
»  Parkes  v.  White,  11  Ves.  222. 

1"  Brown  v.  Bamford,  11  Sim.  131 ;  2  Rop.  Hus.  and  Wife,  236,  240. 

"  Ross's  Trust,  1  Sim.  (n.  s.)  199 ;  Doolan  v.  Blake,  3  Ir.  Eq.  349. 


266  TRUSTEES    FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

such  person  as  the  wife  shall  appoint  after  it  shall  become  due,^ 
or  for  her  sole,  separate,  and  inalienable  use,^  or  where  the  in- 
come is  declared  to  be  unassignable,''  or  where  it  is  to  remain 
in  her  possession,  and  be  for  her  special  use  during  her  natural 
life,  and  at  her  death  to  go  to  her  children,  and  no  other  use 
whatever.*  It  was  at  one  time  held,  that  "  a  trust  to  pay  the 
proceeds  to  such  persons  as  she  should  appoint  when  they 
became  due,  but  not  so  as  to  anticipate  the  same,  and,  in 
default  of  appointment,  into  the  hands  of  the  wife  for  her 
separate  use  "  (but  without  any  other  words  to  restrain  her 
power  of  anticipation),  was  to  be  so  construed  that  if  the 
feme  covert  assigned  the  life-estate,  limited  to  her  in  default  of 
appointment,  it  destroyed  the  power  of  appointment,  and  the 
restraint  upon  anticipation  annexed  to  it  became  nugatory ; 
that  is,  the  restraint  against  alienation  applied  ofili/  to  the 
power,  and  not  to  an  anticipation  in  some  other  way.^  But  these 
cases  were  reversed  on  appeal,  or  overruled ;  and  now  the  con- 
struction is,  that  the  payment  into  her  hands,  as  well  as  the 
power  to  appoint,  was  not  to  operate  until  the  income  became 
due.^ 

§  671.  The  restraint  against  alienation  or  anticipation  will 
apply  to  both  real  and  personal  estate,  and  whether  the  estate 
is  in  fee  or  for  life  ; ''  and  when  it  has  once  attached,  a  court 
of   equity  cannot  discharge  it,  even  where  alienation  would 

1  Field  V.  Evans.  15  Sim.  375  ;  Baker  v.  Bradley,  7  De  G.,  M.  &  G.  597. 

2  D'CEchsner  v.  Scott,  24  Beav.  239 ;  Spring  v.  Pride,  10  Jur.  (n.  s.) 
876. 

3  Rennie  v.  Ritchie,  12  CI.  &  Fin.  204. 

*  Freeman  v.  Flood,  16  Ga.  528. 

*  Barrymore  v.  Ellis,  8  Sim.  1 ;  Brown  v.  Bamford,  11  Sim.  127;  Med- 
ley V.  Horton,  14  Sim.  222. 

®  Moore  v.  Moore,  1  Coll.  84 ;  Harrop  v.  Howard,  3  Hare,  624 ;  Har- 
nett V.  MacDougall,  8  Beav.  127  ;  Brown  v.  Bamford,  1  Phil.  620  ;  Gaffee's 
Trust,  14  Jur.  277  ;  1  Mac.  &  G.  541 ;  Field  v.  Evans,  15  Sim.  375  ;  Baker 
V.  Bradley,  7  De  G.,  M.  &  G.  597. 

">  Baggett  V.  Meux,  1  Phil.  627 ;  Gaffee's  Trust,  14  Jur.  277 ;  Freeman 
V.  Flood,  16  Ga.  528. 


§§  670,  G71.]        RESTRAINT   UPON    ANTICIPATION.  267 

be  advantageous  for  the  wife ;  as,  where  a  large  legacy  was 
given  to  a  married  woman,  on  condition  that  she  disposed  of 
a  small  property,  settled  upon  her  without  power  of  alienation, 
it  was  held  that  the  condition  could  not  be  complied  with, 
and  the  legacy  therefore  failed. ^  But  an  estate  so  settled  is 
subject  to  paramount  equities,  as  for  raising  costs  of  a  suit 
which  may  enable  the  court  to  direct  a  sale.^  A  widow,  after 
her  husband's  death,  and  a  single  woman  before  marriage, 
may  dispose  absolutely  of  gifts  to  their  separate  use,  although 
coupled  with  words  restraining  their  power  of  anticipation  ;  ^ 
upon  the  principle  "  that  any  person,  sui  juris,  possessing  an 
interest,  however  remote,  may  dispose  of  such  interest ;  and 
such  person  cannot  be  prevented,  by  any  intention  of  the 
donor,  from  exercising  the  ordinary  rights  of  ownership." 
Under  whatever  form  of  words  alienation  or  anticipation  may 
be  restrained,  a  person  who  is  sui  juris  may  dispose  of  her 
interest.  But  if  such  right  of  alienation  and  anticipation  is 
not  exercised  while  the  woman  is  single  and  sui  juris,  both 
the  separate  use  and  the  provision  against  anticipation  will 
come  into  operation  upon  marriage  ;  *  and  it  will  be  carried 
into  effect,  though  the  law  of  the  domicile  of  the  parties  for- 
bids such  restraint ;  ^  but  such  restraints  will  not  be  allowed 
to  stand  where  they  fall  within  the  rule  against  perpetuities.^ 
The  restraint  upon  anticipation  will  not  prevent  a  husband 
from  receiving  his  wife's  separate  income ;  nor  will  it  render 
his  estate  liable  for  more  than  one  year's  income  ;  "  nor  will 

'  Robinson  v.  Wheelwright,  6  De  G.,  M.  &  G.  535;  21  Beav.  214. 

*  Fleming  v.  Armstrong,  34  Beav.  109,  or  in  case  of  a  divorce  under  the 
English  statute.     22  &  23  Vict.  c.  61,  §  5 ;  Pratt  v.  Jenner,  1  W.  N.  265. 

8  Jones  V.  Salter,  2  R.  &  M.  208 ;  Woodmeston  v.  Walker,  2  R.  &  M. 
197 ;  Brown  v.  Pocock,  2  R.  &  M.  210 ;  2  M.  &  K.  189  ;  Massey  v.  Parker, 
2  U.  &  K.  174;  Parker  v.  Converse,  5  Gray,  336. 

*  Tullett  V.  Armstrong,  1  Beav.  1 ;  4  M.  «&  Cr.  390,  overruling  Davies 
V.  Thornycroft,  6  Sim.  420;  Brown  v.  Pocock,  5  Sim.  663;  Johnson  r. 
Freeth,  6  Sim.  423 ;  Wells  v.  McCall,  64  Penn.  St.  207. 

*  Peillow  V.  Brooking,  25  Beav.  218. 
'  Fry  V.  Capper,  Kay,  163. 

7  Rowley  v.  Unwin,  2  K.  ife  J.  138. 


268  TRUSTEES   FOR   MARRIED   WOMEN.  [CHAP.  XXII. 

it  prevent  liis  wife's  engagements  from  being  enforced  against 
all  arrears  of  income  of  her  separate  estate ;  ^  nor  does  it 
prevent  her  giving  an  order  for  future  income,  revocable  at 
pleasure  ;  ^  nor  does  it  prevent  her  adjustment  of  the  amount 
with  the  trustees :  ^  but  compensation  for  a  breach  of  trust 
cannot  be  enforced  against  a  fund  limited  by  the  same  instru- 
ment to  her  separate  use  without  power  of  anticipation  ;  *  nor 
can  interest  on  bonds  or  notes,  or  dividends  on  stocks,  ac- 
crued, but  not  yet  payable,  be  anticipated,  if  anticipation  is 
restrained .° 

§  672.  There  is  another  kind  of  trusts  for  married  women, 
created  by  deeds  of  separation  between  husband  and  wife. 
Such  deeds  are  valid  in  law,  so  far  that  the  covenants  con- 
tained in  them  may  form  a  good  consideration  for  a  promise 
to  pay  certain  debts  and  expenses.^  Courts  of  equity  will  not 
specifically  enforce  agreements  of  husband  and  wife  to  live 
separate  and  apart ;  for  that  is  contrary  to  the  policy  of  the 
law.'''  Yet  where  such  agreements  have  been  entered  into 
and  executed,  courts  will  enforce  the  specific  performance  of 
the  provisions  in  favor  of  the  wife,  and  will  compel  the  trus- 
tees under  such  deeds  to  perform  their  duty.^    The  jurisdiction 

1  Fitzgibbon  v.  Blake,  3  Ir.  Eq.  328. 

2  Moore  v.  Moore,  1  Coll.  57. 

^  Wilton  V.  Hill,  2  L.  J.  Ch.  156 ;  Derbishire  v.  Home,  5  De  G.,  M.  & 
G.  113  ;  Stroud  v.  Grozer,  Lewin  on  Trusts,  55G  (5th  ed.). 

*  Clive  V.  Carew,  1  John.  &  Hem.  199  ;  Sheriff  v.  Butler,  12  Jur. 
(n.  s.)  329;  Davies  v.  Hodgson,  25  Beav.  186. 

«  Ee  Brettle,  2  De  G.,  J.  &  Sm.  79  ;  Jollands  v.  Burdett,  2  De  G.,  J.  & 
S.  79  ;  10  Jur.  (x.  s.)  349. 

8  Jones  V.  Waite,  5  Bing.  N.  C.  341,  affirmed  in  9  CI.  &  F.  101 ;  4  M. 
&  G.  1104;  Calkins  v.  Long,  22  Barb.  97. 

7  Head  v.  Head,  3  Atk.  550  ;  Wilkes  v.  Wilkes,  2  Dick.  791 ;  Warrall 
V.  Warrall,  3  Mer.  268. 

8  Guth  V.  Guth,  3  Bro.  Ch.  614;    St.  John  r.  St.  John,   11  Ves.  526 
Warrall  v.  Jacob,  3  Mer.  256  ;  Westmeath  v.  Westmeath,  Jac.  126 ;  West 
meath  v.  Salisbury,  5  Bligh,  375 ;    Hoare  v.  Hoare,  2  Ridg.  P.  C.  268 
Wilson  V.  Wilson,  14  Sim.  405 ;  1  H.  L.  Ca.  538  ;  Elworthv  v.  Bird,  2  S, 
&  S.  372 ;  Frampton  v.  Frampton,  4  Beav.  287 ;  Jones  v.  Waite,  5  Bing 


§§  671,  672.]  TRUSTS   UPON    SEPARATION.  269 

of  the  court  is  generally  confined  to  agreements  concerning 
property,  though  it  may  enjoin  the  parties  from  litigation  in 
courts,  if  they  have  covenanted  not  to  prosecute  a  suit  for 
divorce,  separation,  or  restitution  of  conjugal  rights.^  So  if 
the  husband  has  covenanted  not  to  visit  or  annoy  his  wife, 
he  can  be  enjoined  from  breaking  the  covenant.^  The  court 
may  compel  the  execution  of  a  deed  where  an  agreement  has 
been  entered  into  for  a  good  consideration  and  acted  upon,  or 
it  may  correct  a  mistake  in  such  deed.^  But  no  agreements 
for  a  future  separation  will  be  considered  by  the  court.*     Nor 

N.  C.  341;  9  CI.  &  F.  10 ;  4  M.  &  G.  1104;  Cook  r.  Wiggins,  10  Ves. 
191;  Seeling  v.  Crawley,  2  Vera.  386;  Angler  v.  Angier,  Gilb.  Eq.  142; 
Pr.  Ch.  496  ;  Fletcher  v.  Fletcher,  2  Cox,  109  ;  Hyde  v.  Price,  3  Ves.  437 ; 
Rodney  v.  Chaml)crs,  2  East,  283;  6  East,  252;  2  B.  &  C.  551  ;  Durant  v. 
Titley,  7  Price,  577 ;  Stephens  v.  Olive,  2  Bro.  Ch.  90 ;  Ilobbs  v.  Hull, 
1  Cox,  445;  More  v.  Freeman,  Bunb.  205;  Bateman  v.  Ross,  1  Dow, 
235;  Ross  v.  Willoughby,  10  Price,  2;  Logan  v.  Birkett,  1  M.  &  K.  220; 
Clough  V.  Lambert,  10  Sim.  256 ;  4  M.  &  K.  561 ;  Wellesley  v.  Wellesley, 
4  M.  &  C.  661;  Wilson  v.  Mushet,  3  B.  &  Ad.  743.  Lord  Chancellor 
Cottcnham  said,  that  all  the  older  cases  might  be  thrown  aside;  and  that 
the  later  cases,  especially  those  in  the  House  of  Lords,  settled  the  law. 
Wilson  V.  Wilson,  1  H.  L.  Ca.  572.  In  the  United  States  the  same  general 
rule  is  held.  Champlin  v.  Champlin,  1  HoU".  Ch.  55  ;  Rogers  v.  Rogers, 
4  Paige,  518;  Carson  v.  Murray,  3  Paige,  483;  Mercein  v.  People,  25 
Wend.  77;  Hutton  v.  Duey,  3  Barr,  100;  McKenna  v.  Phillips,  6  Whart. 
571 ;  Dellingers  App.  35  Penn.  St,  357  ;  Simpson  v.  Simpson,  4  Dana,  140; 
McCrocklin  v.  McCrocklin,  2  B.  Mon.  370;  Mansfield  v.  MansTield,  Wright 
(Ohio).  284;  Reed  v.  Beazley,  1  Blackf.  97;  Sterling  v.  Sterling,  12  Ga. 
201;  Coster  v.  Coster,  14  Sm.  &  M.  59;  Picket  v.  Johns.  1  Dev.  Eq.  123; 
Page  V.  Trufant,  2  Mass.  158;  Hollenbeck  v.  Pexley,  3  Gray,  521;  Albee  v. 
Wyman,  10  Gray,  222;  Holbrook  v.  Comstock,  16  Gray,  101;  Walker  v. 
Walker,  9  Wall.  744;  Baker  v.  Barney,  8  Johns.  72;  Beach  v.  Beach,  2 
Hill,  260;  Shelthar  v.  Gregory,  2  Wend.  422;  Calkins  v.  Long,  22  Barb.  97; 
Wells  V.  Stout,  9  Cal.  494. 

'  Wilson  V.  Wilson,  1  H.  L.  Ca.  571. 

^  Sanders  v.  Rodney,  16  Beav.  207;  Green  v.  Green,  5  Hare,  400,  n. ; 
Webster  v.  Webster,  4  De  G.,  M.  &  G.  437. 

8  Wilson  V.  Wilson,  5  H.  L.  Ca.  40. 

*  Durant  v.  Titley,  7  Price,  577;  Hobbs  v.  Hall,  1  Cox,  445;  West- 
nieath  v.  Westmeath,  Jac.  142,  controlling  Rodney  v.  Chambers,  2  East, 
297;  Hoare  v.  Hoare,  2  Ridg.  P.  C.  268;  Chambers  r.  Cauifield,  6  East, 
244;  Hutton  v.  Duey,  3  Barr,  106;  Dellinger's  App.  11  Casey,  357;  Hit- 
ner's  App.  4  P.  F.  Smith,  114. 


270  TRUSTEES   FOR   MARRIED   "WOMEN.         [CHAP.  XXII. 

can  the  payment  of  an  annuity  be  enforced  if  granted  on  con- 
dition that  a  separation  should  take  place  in  the  future.^  An 
agreement,  however,  by  a  husband,  that  he  will  pay  back  all 
the  advances  made  to  his  wife  by  her  father,  in  case  they  sep- 
arate, is  valid,  and  may  be  enforced  if  made  by  deed.^  Mere 
deeds  of  separation  are  no  bar  to  a  divorce,  if  there  is  good 
cause  ;  ^  but  if  parties  live  apart  by  agreement  and  consent, 
a  divorce  cannot  be  obtained  on  the  ground  of  desertion.  Nor 
are  they  any  bar  to  a  claim  for  alimony  upon  a  divorce 
granted,  but  the  rights  secured  by  such  deeds  will  of  course 
be  taken  into  consideration  as  to  the  amount  of  alimony.* 
And  a  proceeding  in  the  courts  for  a  divorce  and  for  alimony 
may  be  an  abandonment  of  the  covenants  in  a  deed  of  separa- 
tion.^ 

§  673.  It  may  be  said  generally,  that,  in  order  to  make  a 
valid  deed  of  separation,  which  will  save  the  rights  of  all  par- 
ties, there  must  be  trustees  interposed  to  take  the  property  for 
the  use  of  the  wife,  and  to  enter  into  covenants  in  her  behalf.^ 
If  trustees  are  interposed,  and  they  covenant,  in  consideration 
of  the  provisions  for  the  wife,  to  indemnify  the  husband 
against  her  debts,  or  other  claims  on  his  property,  it  will  form 
a  valuable  consideration,  which  will  support  the  transaction 
against  the  husband's  creditors.^  The  absence  of  such  cove- 
nants on  the  part  of  the  trustees  will  not  invalidate  the  deed 

'  Cocksedge  v.  Cocksedge,  5  Hare,  897  ;  8  Jur.  659. 

*  Waring  v.  Waring,  10  B.  Mon.  331. 

8  Anderson  v.  Anderson,  1  Edw.  Ch.  380. 

*  Miller  v.  Miller,  Saxt.  386. 

'  Albee  i-.  Wyman,  10  Gray,  222. 

6  St.  John  V.  St.  John,  11  Ves.  526;  Legard  r.  Johnson,  3  Ves.  359; 
Worrall  v.  Jacob,  3  Mer.  268;  Carson  v.  Murray,  3  Paige,  483;  Simpson  v. 
Simpson,  4  Dana,  140;  Bettle  v.  Wilson,  14  Ohio,  257;  Tourney  v.  Sin- 
clair, 3  How.  (Miss.)  324;  Carter  v.  Carter,  14  Sm.  &  M.  59;  Watkins  v. 
Watkins,  7  Yerg.  283.     But  see  Button  v.  Button,  30  Ind.  452. 

'  Stephens  v.  Olive,  2  Bro.  Ch.  90  ;  Compton  v.  Collinson,  2  Bro.  Ch.  38; 
Worrall  v.  Jacob,  3  Mer.  256  ;  Elworthy  r.  Bird,  2  S.  &  S.  381. 


§§  672-674.]  DEED   OP    SEPARATION.  271 

as  against  the  husband  ;  ^  but  it  would  not  be  good,  for  want 
of  a  consideration,  against  his  creditors. ^  If,  however,  the 
provisions  for  the  wife  still  stand  only  in  agreement,  and  there 
are  no  covenants  by  trustees,  or  other  valuable  considerations 
to  support  the  agreement,  it  would  be  a  nudum  pactum^  which 
equity  cannot  enforce.^  If  there  is  a  suit  for  divorce,  or  for 
nullity  of  the  marriage,  and  the  husband  enter  into  agree- 
ments, in  consideration  of  the  discontinuance  of  such  suit, 
the  discontinuance  of  the  suit  is  a  sufficient  consideration  for 
the  agreements.'*  If  the  trust  is  actually  created  and  acted 
upon,  it  is  not  necessary  that  the  instrument  should  be  for- 
mally executed  as  a  deed.^  So  if  an  agreement  for  an  imme- 
diate separation  is  entered  into  by  husband  and  wife,  and 
acted  upon  without  the  intervention  of  trustees,  equity  will 
sustain  the  agreement,  and  will  carry  it  into  effect  by  treating 
the  husband  as  a  trustee,  and  by  compelling  him  to  complete 
and  carry  the  trust  into  effect.^ 

§  674.  Where  property  is  vested  by  the  husband  in  trustees 
for  the  separate  use  of  the  wife,  under  a  deed  of  separation,  the 
wife  cannot  exercise  the  same  power  in  regard  to  it,  that  she 
can  over  her  ordinary  separate  estate,  but  she  will  take  it 
under  all  the  common-law  disabilities  of  coverture ;  conse- 
quently, she  cannot  sell  or  charge  it  with  her  debts  or  con- 
tracts.'^     But,  of  course,  her  power  over  the  property  will 

^  Fitzer  v.  Fitzer,  2  Atk.  511;  Westmeatli  v.  Westmeath,  Jacob,  126; 
Frampton  v.  Frampton,  4  Beav.  287  ;  Reed  v.  Beazley,  1  Blackf.  98 ;  Bowers 
V.  Clark,  Philadelphia  Rep.  561. 

*  Ibid. 

3  Elworthy  v.  Bird,  2  S.  &  S.  371;  Wilson  v.  Wilson,  U  Sim.  405;  1 
H.  L.  Ca.  538. 

*  Ibid. 

^  Ibid. ;  Angier  v.  Angier,  Pr.  Ch.  496 ;  Head  v.  Head,  3  Atk.  54. 

c  More  V.  Ellis,  Bunb.  205;  Guth  v.  Guth.  3  Bro.  Ch.  614;  Frampton 
V.  Frampton,  4  Beav.  294;  Ilutton  i'.  Duey,  3  Barr,  100;  Barron  v.  Barron, 
24  Vt.  375;  Picket  v.  Johns,  1  Dev.  Eq.  123. 

^  Hyde  v.  Price,  3  Ves.  437. 


272  TRUSTEES   FOR  MARRIED   WOMEN.         [CHAP.  XXII. 

depend  very  much  upon  the  terms  of  the  deed  of  separation ; 
for  the  husband  may  give  her  the  absokite  equitable  interest  of 
the  property,  or  he  may  confine  her  to  the  reception  of  the 
income  from  year  to  year,  and  so  he  may  clothe  her  with  the 
power  of  disposing  of  the  property  after  her  death  by  a  will  or 
appointment,  or  he  may  limit  the  property  to  himself  or  his 
heirs  after  her  decease.  Thus  where  a  husband  put  property 
into  the  hands  of  a  trustee,  for  the  use  of  the  wife  on  a  separa- 
tion, and  they  were  afterwards  reconciled  and  lived  together, 
it  was  held  that  the  property  was  settled  to  the  separate  use  of 
the  wife,  notwithstanding  they  lived  together.^  So  where  the 
settlement  is  once  made,  friendly  visits  between  husband  and 
wife,  and  expressions  of  regret  at  the  separation,  not  accom- 
panied with  cohabitation,  will  not  discharge  or  annul  the  set- 
tlement.^ It  is  the  duty  of  the  trustees  to  carry  out  all  the 
provisions  of  the  trust  for  the  wife,  so  long  as  it  subsists ;  and 
if  there  are  covenants  of  the  husband  or  other  persons  for  the 
benefit  of  the  wife,  the  trustees  must  sue  for  the  breach  of 
them,  and  apply  the  proceeds  to  the  purposes  of  the  trust.  If 
the  trustees  neglect  or  decline  to  do  this,  the  wife  may  bring  a 
suit  in  equity,  by  her  next  friend,  against  both  the  trustees 
and  the  husband,  or  other  persons  liable  under  the  settlement.^ 
And  the  husband  may  also  interfere,  and  maintain  a  bill  for  the 
proper  execution  of  the  trusts  which  he  has  created  for  the 
benefit  of  his  wife.* 

§  675.  The  statutes  of  many  of  the  United  States  have  very 
materially  affected  the  rights  of  married  women  in  regard  to 
their  separate  property  ;  or  rather  these  statutes  have  converted 
nearly  all  the  property  that  married  women  may  at  any  time 

1  Huntly  V.  Huntly,  6  Ired.  Eq.  514;  Ratcliffe  v.  Huntly,  5  Ired,  545. 
"  Heyer  v.  Burger,  1  Hoff.  Ch.  1 ;  Webster  v.  Webster,  1   Sm.  &  Gif. 
489. 

8  Cook  V.  Wiggins,  10  Ves.  191 ;  Seagrave  v.  Seagrave,  13  Ves.  439. 
*  Cranston  v.  Plumb,  64  Barb.  59. 


§§674,675.]  LEGISLATION.  273 

have,  into  estates  settled  to  their  separate  use,  without  the 
intervention  of  a  trustee.  The  substance  of  all  these  statutes 
is,  that  all  the  property,  both  real  and  personal,  which  a  mar- 
ried woman  owns,  or  which  comes  to  her  by  devise,  bequest, 
gift,  or  grant ;  and  that  which  she  acquires  by  her  trade,  busi- 
ness, labor,  or  services,  carried  on  or  performed  on  her  separate 
account ;  and  that  which  she  owned  at  the  time  of  her  mar- 
riage, and  the  issues,  income,  profits,  and  proceeds  of  such 
property,  —  shall  be  and  remain  her  sole  and  separate  property, 
and  may  be  used,  collected,  and  invested  in  her  own  name, 
and  shall  not  be  sulgect  to  the  interference  or  control  of  her 
husband  or  liable  for  his  debts  ;  and  she  may  bargain,  sell,  and 
convey  her  separate  real  and  personal  property,-  enter  into  any 
contracts  in  reference  to  the  same,  carry  on  any  trade  or  busi- 
ness, and  perform  any  labor  or  services  on  her  sole  and  separate 
account,  and  sue  and  be  sued  in  all  matters,  having  relation 
to  her  separate  property,  business,  trade,  services,  labor,  and 
earning  in  the  same  manner  as  if  she  were  sole.  There  is 
generally  a  provision  attached  to  these  statutes,  that  she  shall 
not  convey  her  real  estate  except  her  husband  joins  in  the  deed, 
or  assents  to  the  conveyance  in  writing,  and  the  same  provision 
exists  in  some  States,  in  relation  to  some  kinds  of  personal 
property,  as  stocks  or  shares  in  corporations.  It  is  also  gen- 
erally provided,  that  trustees  may  be  ai)pointed  to  hold  the  title 
of  such  property  for  the  separate  use  of  the  married  woman,  if 
she  desires  it.^  As  the  husband  takes  no  present  beneficial 
interest  in  his  wife's  property,  at  the  time  he  assumes  the  obli- 
gations of  marriage,  the  statutes  of  some  States  have  released 
him  from  some  of  the  burdens  of  marriage  by  providing  that 
he  shall  not  be  liable  for  any  of  his  wife's  antenuptial  debts  or 

'  This  is  tlie  substance  of  the  Massachusetts  statute,  Gen.  Stat.  c.  108, 
§§1,3,  4.  It  is  impossible  to  cite  all  the  statutes  of  so  many  (litferent 
States.  Some  go  further  than  the  statute  of  Massachusetts,  and  some  do 
not  go  so  far.  The  general  principles  of  the  statutes  in  all  the  States  are 
essentially  the  same,  but  there  is  great  variety  in  the  details. 

VOL.  II.  18 


274  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

contracts  ;  ^  and  perhaps,  the  statutes,  in  order  to  make  a  per- 
fect system,  should  go  further,  and  provide  that  he  should  not 
be  liable  for  any  torts  of  his  wife,  as  for  slander,  libel,  and  the 
like.2 

§  676.  These  statutes  have  not  yet  been  moulded  into  a  con- 
sistent whole,  nor  have  they  received  such  judicial  construction 
that  any  certain  general  principles  can  be  safely  affirmed  of 
them  all ;  but  it  would  appear  that  they  cannot  affect  any  rights 
of  the  husband  in  his  wife's  property  which  became  vested 
before  the  passage  of  them,  it  being  contrary  to  the  general 
principles  of  law,  as  well  as  of  the  constitution  of  the  United 
States,  and  of  the  several  States,  to  destroy  vested  interests,  or 
to  transfer  them  from  one  person  to  another.  Thus  a  husband, 
married  in  any  one  of  the  States  before  the  passage  of  the  stat- 
ute in  that  State,  took  the  property  that  his  wife  then  had 
according  to  the  statute  or  law  in  force  at  the  time  of  the  mar- 
riage.^    Therefore  if  a  husband  took  his  wife's  money  at  the 

*  In  Dickson  v.  Miller,  11  Sm.  &  M.  594,  it  is  said,  that  "in  marriage, 
although  a  husband  runs  the  hazard  of  being  liable  for  his  wife,  in  an 
amount  greater  than  the  value  of  the  estate  he  receives  by  her,  he  also  has 
the  chance  of  receiving  by  her  an  amount  far  exceeding  her  debts  ;  but  where 
the  whole  estate  of  the  wife,  notwithstanding  coverture,  continues  separate 
to  her,  there  is  no  such  recompense  to  the  husband  for  his  obligations  for 
his  wife's  debts,  but,  on  the  contrary,  there  may  be  a  certainty  of  his  becom- 
ing indebted,  on  behalf  of  his  wife,  with  no  possibility  of  his  receiving  an 
amount  even  equal  to  her  debts."  See  Cater  v.  Everleigh,  4  Des.  19. 
Where  statutes  have  abolished  his  liability  for  her  debts  this  criticism  is 
avoided.  Bailey  v.  Pearson,  9  Fost.  77 ;  Reunnecker  v.  Scott,  4  Green 
(lo.),  185  ;  Callahan  v.  Patterson,  4  Tex.  61 ;  Curry  v.  Shrader,  19  Ala.  831. 

^  Brown  I'.  Kemper,  27  Md.  666. 

3  Eldredge  v.  Preble,  34  Me.  148 ;  Peck  v.  Walton,  26  Vt.  82 ;  Jenney 
V.  Gray,  5  Ohio  St.  45 ;  Snyder  v.  Snyder,  3  Barb.  621  ;  Perkins  v.  Cot- 
trell,  15  Barb.  446;  Burson's  App.  22  Penn.  164;  Roby  v.  Boswell,  23 
Ga.  51 ;  Tyrson  v.  Mattair,  8  Fla.  107  ;  Maynard  v.  Williams,  17  Ala.  676  ; 
Ratcliff  V.  Dougherty,  24  Miss.  181 ;  Tally  v.  Thompson,  20  Miss.  277 ; 
Carter  v.  Carter,  14  Sm.  &  M.  59 ;  Love  v.  Robertson,  7  Tex.  6 ;  Ryder  v. 
Hulse,  33  Barb.  264;  24  N.  Y.  372;  Savage  v.  O'Neil,  42  Barb.  374 ; 
Maclay  v.  Love,  25  Cal.  367;  Quigley  v.  Graham,  18  Ohio  St.  42. 


§§  675-677.]  STATUTES.  275 

time  of  his  marriage,  under  existing  laws,  and  a  statute  was 
afterwards  passed  conferring  upon  the  wife  the  riglit  to  hold 
her  separate  property,  and  the  husband  purchased  land  with 
the  money,  and  took  the  deed  in  his  wife's  name,  the  land  will 
nevertheless  belong  to  him,  as  purchased  with  his  money. ^  But 
statutes  may  declare  what  rights  a  husband  shall  take  in  prop- 
erty that  comes  to  his  wife  after  the  passage  of  the  act,  and 
after  the  marriage.^  On  principle,  it  would  seem  that  the  right 
to  reduce  a  wife's  choses  in  action  to  possession  vested  in  the 
husband  at  the  time  of  the  marriage,  and  could  not  be  divested 
by  a  statute  passed  after  the  marriage,  although  the  husband 
had  not,  at  the  time  of  the  passage  of  the  act,  reduced  the 
choses  to  possession  ;  and  so  it  has  been  j'uled  in  several  cases.^ 
No  prior  debts  of  the  husband  can  alter  the  rights  of  the  par- 
ties, and  affect  the  interests  of  a  married  woman  in  property 
coming  to  her  after  the  enactment  of  the  statute.* 

§  677.  The  passage  of  these  acts  does  not  affect  settlements, 
already  made  at  the  time  of  their  passage,  to  the  separate  use 
of  married  women.^  So  they  do  not  affect  the  right  of  a  woman 
to  a  settlement  of  her  estate  upon  herself,  if  she  chooses  to 
invoke  the  old  equity  of  a  settlement  of  her  choses  in  action,  it 
being  held  that  these  statutes  are  an  enlargement  and  not  a 
diminution  of  her  rights.*^  The  statutes  of  some  of  the  States 
provide  that  she  may  have  a  trustee  to  take  her  separate  prop- 
erty, if  she  prefers  that  mode  of  holding  it.     The  jurisdiction 

1  Sharp  V.  Maxwell,  30  Miss.  442. 

2  Sleight  V.  Read,  18  Barb.  159;  Southard  v.  I'lummer,  36  Me.  64. 

8  Ryder  v.  Ilulse,  24  N.  Y.  372;  Westvelt  v.  Gregg,  2  Kern.  202; 
Stearns  v.  Mathews,  30  Ala.  712;  Noble  v.  McFarland,  51  111.  226;  Coombs 
V.  Read,  16  Gray,  271.  The  opposite  rule  has  been  held  in  Pennsylvania 
and  New  Jersey.  Henry  v.  Dilley,  1  Dutch.  302  ;  Milliiiger  v.  Bausnian, 
45  Penn.  St.  522;  Goodyear  v.  Rumbaugh,  13  Penn.  St.  480. 

''  Sleight  V.  Read,  18  Barb.  15U.  But  see  Cunningham  v.  Gray,  20  Mo. 
170. 

5  Willis  V.  Cadenhead,  28  Ala.  472;  Hardy  v.  Boaz,  29  Ala.  168. 

6  Blevins  v.  Buck,  20  Ala.  292. 


276  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

of  courts  of  equity  over  the  property  and  proprietary  rights  of 
married  women  is  not  taken  away  by  these  acts,  but  the  equity 
powers  of  the  courts  may  still  be  invoked,  where  it  is  necessary 
to  secure  their  separate  property  to  their  use,  according  to  the 
intention  of  the  statutes,  or  the  intention  of  the  donors  of  such 
property.^  It  may  be  stated,  as  a  general  rule,  that  the  same 
principles  of  construction  and  of  practice  apply  to  these  stat- 
utes, as  were  applied  to  the  old  settlements  of  a  wife's  separate 
property  upon  herself.  Thus  the  presumption  still  is,  as  it  was 
at  common  law,  that  a  married  woman's  property  belongs  to 
her  husband  ;  and  it  is  necessary  to  rebut  that  presumption  by 
showing  that  it  came  to  the  wife,  under  such  circumstances,  and 
at  such  times,  and  by  such  gifts,  grants,  or  bequests,  that  it 
belongs  to  the  wife,  and  not  to  him,  and  that  it  is  not  liable  for 
his  debts.2  This  is  nothing  more  than  the  principle  that  runs 
through  the  whole  body  of  jurisprudence.  Statutes  in  deroga- 
tion of  the  common  law  are  strictly  construed ;  and  if  a  par- 
ticular matter  is  to  be  taken  out  of  the  operation  of  the  common 
law,  it  must  be  shown  to  be  within  the  letter  or  spirit  of  the 
statute  so  changing  the  common  law. 

§  678.  The  husband  may  constitute  his  wife  his  agent  to 
transact  his  business  and  to  deal  with  his  property.  In  the 
same  manner  the  wife  may  appoint  her  husband  her  agent  to 
manage  her  separate  property.  And,  as  at  common  law,  the 
mere  fact  that  a  husband  did  not  reduce  his  wife's  choses  in 
action  to  possession  immediately,  but  allowed  her  to  use  and 

1  Calvin  v.  Currier,  22  Barb.  37i;  Mitchell  v.  Otey,  23  Miss.  236; 
Richardson  v.  Stodder,  100  Mass.  528 ;  Lampley  v.  Watson,  43  Ala.  377. 

2  Eldredge  v.  Preble,  34  Me.  148 ;  Gault  v.  Saffin,  44  Penn.  St.  307 ; 
Bear  v.  Bear,  33  Penn.  St.  525;  Winter  v.  Walters,  37  Penn.  St.  157; 
Gamber  v.  Camber,  18  Penn.  St.  363;  Goodyear  u.  Rumbaugh,  13  Penn. 
St.  480;  Alverson  v.  Jones,  10  Cal.  9;  Stanton  v.  Kirsch,  6  Wis.  338; 
Smith  V.  Hewett,  13  lo.  94;  Smith  v.  Henry,  35  Miss.  369.  Contrary 
opinions  were  expressed  in  Johnson  v.  Runyan,  21  Ind.  115 ;  Stewart  v.  Ball, 
3  Mo.  154. 


§§  677, 678.]  STATUTES.  277 

enjoy  them,  and  even  to  take  notes  in  her  own  name,  could  not 
be  used  as  conclusive  proof  that  he  abandoned  his  right,  and 
gave  the  chases  to  her  ;  ^  so  the  mere  fact,  that  a  husband  is  in 
possession  of  his  wife's  property  under  these  statutes,  will  not 
destroy  her  right  to  the  same,  if  it  appears  that  he  acts  as  her 
agent.  So  long  as  property  may  be  identified  as  belonging  to 
her,  or  so  long  as  its  income  or  proceeds  can  be  clearly  traced 
and  identified  as  coming  from  her  property,  although  managed 
by  her  husband  as  her  agent,  she  is  entitled  to  recover  the 
same.2  The  wife  may  give  a  power  of  attorney  to  her  husband 
to  execute  a  deed  of  her  land  in  her  name  ;^  a  husband  can  con- 
duct a  suit  in  the  name  of  the  wife  for  damages  to  her  prop- 
erty ;  ^  and  the  husband  may  employ  other  agents  and  attorneys 
in  her  name  in  relation  to  her  separate  property  under  the  stat- 
ute.'^ So  the  fact,  that  the  husband  manages  her  property,  or 
that  she  allows  him  a  living  from  the  income,  gives  his  creditors 
no  claim  to  other  parts  of  her  separate  estate.^  So  if  he  lives 
with  her  on  her  land,  and  cultivates  and  improves  it,  and  makes 
betterments,  without  any  agreement  with  her,  it  will  give  neither 
him  nor  his  creditors  any  interest  in  the  land,  buildings,  bet- 
terments, crops,  or  improvements ;  but  the  owner  of  the  land, 
in  the  absence  of  all  agreements,  will  own  all  these  incidents 
to  the  land  itself."     But,  as  under  the  law  in  relation  to  settle- 

'  Ryder  v.  Hulse,  33  Barb.  264;  24  N.  Y.  372. 

'  Jonning  v.  Davis,  31  Conn.  134 ;  Hutchins  r.  Colby,  43  N.  H.  139 ; 
Teller  v.  Bishop,  8  Minn.  226;  Kirkpatrick  v.  Beaufonl,  21  Ark.  268; 
Buckley  v.  Wells,  33  N.  Y.  518;  Knapp  v.  Smith,  27  N.  Y.  277. 

^  Weisbrod  v.  Chicago,  &c.,  R.ll.  Co.  18  Wis.  35;  Peck  v.  Hender- 
shott,  14  lo.  40. 

•»  Woodman  v.  Neal,  48  Me.  2G6. 

*  Southard  v.  Plummer,  3C  Me.  04. 

«  Buckley  v.  Wells,  33  N.  Y.  518 ;  Knapp  v.  Smith,  27  X.  Y.  277. 

^  Betts  V.  Betts,  18  Ala.  787 ;  Mclntire  i'.  Knowlton,  6  Allen,  565 ; 
Allen  V.  Hightower,  21  Ark.  316;  Welston  v.  Hildreth,  39  Vt.  457;  Lewis 
V.  Johns,  24  Cal.  98;  Chauvcte  v.  Mason,  4  Green  (lo.),  231;  White  v. 
Hildreth,  32  Vt.  465 ;  Colman  v.  Sattertield,  2  Head,  259 ;  Goss  v.  Cahill, 
42  Barb.  216;  Robinson  v.  Huffman,  15  B.  Men.  80;  Jenney  v.  Gray,  5 
Ohio  St.  45 ;  Wilkinson  v.  Wilkinson,  1  Head,  305 ;  Johnson  v.  Yail,  1 


278  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

ments  for  the  separate  use  of  a  married  woman,  if  she  allowed 
her  husband  to  receive  her  property,  and  to  deal  with  it  as  his 
own  in  business,  or  in  paying  his  debts,  or  in  supporting  the 
family,  she  would  be  presumed  to  assent  to  such  use  ;  so  if  a 
married  woman,  owning  property  under  these  statutes,  allows 
her  husband  to  receive  her  separate  property,  and  to  use  in 
business  or  mix  it  with  his  own  in  such  manner  that  her  prop- 
erty cannot  be  identified  or  separated  from  the  general  mass, 
she  will  lose  her  rights  in  such  property  as  against  her  hus- 
band's creditors,^  and  she  will  have  no  remedy  except  in  equity 
as  a  creditor.2  If  a  husband,  acting  as  the  agent  of  his  wife, 
signs  a  note  in  her  name,  he  will  not  be  held  upon  the  note, 
although  his  wife  may  be  insolvent ;  that  is,  the  same  princi- 
ples apply  when  husband  and  wife  are  principal  and  agent,  as 
apply  to  other  principals  and  agents.^ 

§  679.  When  a  married  woman  holds  property  to  her  sepa- 
rate use  under  a  settlement,  or  under  these  statutes,  she  may 
give  it  to  her  husband,  or  sell  it  to  him  for  a  valuable  consider- 
ation ;  ^  and  if  she  allows  him  to  receive  her  property,  or  the 
income  of  it,  her  assent  will  be  presumed.  If  she  gives  it  to 
him,  she  can  make  no  claim  upon  him,  or  his  estate  for  reim- 
bursement ;  °  but  if  the  circumstances  do  not  sustain  tlie  pre- 
sumption of  a  gift,  she  will  be  entitled  to  compensation  from 
his  estate.     So  the  terms  upon  which  a  husband  is  dealing  with 

McCart.  423;  Hodges  v.  Cobb,  8  Rich.  50;  Abby  v.  Dego,  44  N.  Y.  343. 
A  wife  may  lease  her  land  to  her  husband.  Atkin  v.  Lord,  39  N.  H. 
196. 

1  Glover  V.  Alcott,  11  Mich.  470;  Kelly  v.  Drew,  12  Allen,  107;  Gross 
V.  Reddig,  45  Penn.  St.  406 ;  Gardner  v.  Gardner,  1  Gif.  126. 

"  Glidden  v.  Taylor,  16  Ohio  St.  509.     ' 

3  Taylor  v.  Shelton,  30  Conn.  122. 

«  Lyn  V.  Ashton,  1  Russ.  &  M.  190 ;  Dallam  v.  Wampole,  1  Pet.  C.  C. 
116  ;  2  Kent,  111 ;  Hinney  v.  Phillips,  50  Penn.  St.  382  ;  Johnston  v.  John- 
ston, 1  Grant,  468;  White  v.  Callinan,  19  Ind.  43;  Gage  v.  Dauchy,  28 
Barb.  622 ;  Roper  w.  Roper,  29  Ala.  247;  Fox  v.  Jones,  1  West  Va.  205. 

*  Paulet  V.  Delavel,  2  Ves.  663;  Edelen  v.  Edelen,  11  Md.  415. 


§§  678-680.]       CONSTRUCTION    OP   THE    STATUTES.  279 

his  wife's  property  may  always  be  proved,  and  must  generally 
be  determined  by  the  evidence.  If  it  appears  that  the  husband 
acted  as  the  agent  of  the  wife,  there  is  no  presumption  of  a 
gift.^  As  all  transfers  from  the  wife  to  the  husband  are  some- 
what suspicious  by  reason  of  the  relation,  and  the  danger  of 
some  secret  influence,  gifts  of  the  capital  sum  arc  not  pre- 
sumed in  the  first  instance  ;  but  there  is  less  suspicion  attached 
to  transfers  of  the  income  to  him,  than  to  transfers  of  the 
capital  sum,  for  the  reason  that  the  income  is  generally  appro- 
priated to,  and  consumed  in  the  support  of  the  husband  and 
wife  and  their  family. 

§  680.  The  rules  in  relation  to  the  general  contracts  of  mar- 
ried women,  and  their  binding  effect  upon  their  separate  estates 
under  the  old  form  of  settlements  apply  substantially  in  the  same 
manner  to  their  separate  estates  under  these  statutes.  It  will 
be  remembered,  that  the  contracts  themselves  were  utterly 
void,  but  that  equity  gave  them  effect  as  quasi  charges  upon 
their  separate  property .^  These  statutes  have  legalized  con- 
tracts of  married  women.  But  all  contracts  made  by  them  are 
not  legalized.  They  are  empowered  to  make  "  contracts,  and 
to  sue  and  be  sued,  only  in  relation  to  their  separate  estates." 
It  was  seen,  that,  under  the  old  settlements  in  England,  and  in 
a  few  of  the  States,  the  general  engagements  of  married  women 
were  enforced  in  equity  against  their  separate  estates,  although 
those  engagements  had  no  reference  to  their  separate  estates, 
and  were  not  for  the  benefit  of  the  estates  or  of  themselves 
personally.^  In  a  majority  of  the  United  States,  a  more  limited 
rule  was  applied,  and  the  contracts  of  married  women  were  not 
enforced  against  their  separate  estates,  unless  these  contracts 
were  made  in  relation  to  their  estates,  and  were  for  the  benefit 
of  their  estates,  or  for  their  own  personal  benefit.^     Tlic  same 

'  Elijah  V.  Taylor,  37  111.  -247 ;  Wales  v.  Newbould,  9  Mich.  45. 

»  Ante,  §§  657-6G3. 

=•  Ante,  §  GGO.  *  Ante,  %  661. 


280  TRUSTEES   FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

principles  arc  applied  in  enforcing  the  contracts  of  married 
women  under  the  statutes.  A  married  woman  may  give  her 
note  for  her  husband's  or  other  person's  debt,  and  make  such 
note  a  legal  charge  upon  her  separate  estate  by  duly  executing 
a  mortgage  according  to  law.^  In  such  case  she  will  be  deemed 
a  mere  surety  for  her  husband,  and  will  be  entitled  to  compen- 
sation out  of  her  husband's  estate,  if  she  pays  the  debt.^  But 
if  a  married  woman  executes  a  note  for  the  debt  of  her  hus- 
band, or  for  the  debt  of  any  other  person,  and  such  note  or 
contract  is  not,  by  mortgage  or  other  deed,  made  a  charge  or 
lien  upon  her  separate  estate,  and  is  not  for  her  personal  benefit, 
nor  for  the  benefit  of  her  estate,  nor  in  relation  to  it,  it  cannot 
be  enforced  against  her ;  that  is,  it  is  not  within  the  terms  of 
the  statute  authorizing  her  to  contract.^  On  this  principle,  all 
contracts  and  notes  entered  into  by  a  wife  in  relation  to  her 
separate  property,  as  for  improvements  made  upon  her  separate 

*  Eaton  V.  Wason,  47  Me.  132;  Bartlett  v.  Bartlett,  4  Allen,  440; 
Demarest  v.  Wynkoop,  3  John.  Ch.  129;  Van  Home  v.  Everson,  13 
Barb.  526;  Vartie  v.  Underwood,  18  Barb.  561;  Leavitt  v.  Peel,  25 
N.  y.  474;  Younge  v.  Graff,  28  111.  20;  Ellis  v.  Kenyon,  25  Ind.  134; 
Watson  V.  Thurber,  11  Mich.  457 ;  Wolff  v.  Van  Meter,  19  lo.  134;  Green 
V.  Scranage,  19  lo.  461 ;  Spear  v.  Ward,  20  Cal.  659 ;  Gardner  v.  Gardner, 
7  Paige,  112;  Keller  v.  Ptuiz,  21  La.  An.  283;  Kiiiner  v.  Walsh,  44  Mo. 
65  ;  McFerrin  v.  White,  6  Cold.  499.  But  see  Bibb  v.  Pope,  43  Ala.  190  ; 
Van  Kirk  v.  Skillman,  34  N.  J.  109. 

*  State  V.  Hulick,  33  N.  J.  Law,  307 ;  Harford  v.  Baker,  20  N.  J.  Eq. 
101;  Kinner  tj.  Walsh,  44  Mo.  65. 

=>  Yale  V.  Dederer,  18  N.  Y.  265 ;  22  N.  Y.  450 ;  White  v.  McNett,  33 
N.  Y.  371;  Ledlie  v.  Vrooman,  41  Barb.  109;  White  v.  Story,  43  Barb. 
124;  Parker  v.  Simonds,  1  Allen,  258;  Crane  v.  Kelley,  7  Allen,  250; 
Shannon  v.  Canney,  44  N.  H.  592 ;  Bailey  v.  Pearson,  9  Fost.  77 ;  Lytle's 
App.  36  Penn.  St.  131;  Noyes  v.  Blakeman,  3  Sand.  531;  2  Seld.  567; 
Manchester  v.  Sahler,  47  Barb.  155 ;  Hutchman  v.  Underwood,  27  Tex. 
255;  Keaton  v.  Scott,  25  Ga.  652;  Sweeney  v.  Smith,  15  B.  Mon.  325; 
Wolff  V.  Van  Meter,  19  lo.  134;  Brunner's  App.  47  Penn.  St.  67;  Patton 
V.  Stewart,  19  Ind.  233 ;  Steinman  v.  Ewing,  43  Penn.  St.  63 ;  Ramborger 
V.  Ingram,  3  Penn.  St.  146 ;  Cummings  v.  Miller,  3  Grant,  143;  Rumfelt  v. 
Clemens,  46  Penn.  St.  455;  Parke  v.  Kleeber,  37  Penn.  St.  251;  Peake  v. 
Le  Bow,  21  N.  J.  Eq.  269;  Kimm  r.  Weippert,  46  Mo.  532;  Schafroth 
V.  Ambs,  46  Mo.  114;  Nunn  v.  Graham,  45  Ala.  370. 


§§  680,  681.]       RIGHTS   UNDER   VARIOUS   STATUTES.  281 

land,  or  for  materials  to  be  used  upon  it  in  building  a  house,  or 
for  labor  in  cultivating  it,  may  be  enforced  against  her  by  a 
direct  suit  at  law  ;  and  an  execution  may  issue  against  her,  and 
be  levied  upon  her  separate  property .^  But  in  an  action  of  law 
against  a  married  woman  living  with  her  husband,  the  burden 
is  upon  the  plaintiff  to  show  such  facts  as  will  make  her  liable 
upon  a  contract.^  She  may  make  parol  as  well  as  written  con- 
tracts, binding  upon  her  separate  estate,  but  it  must  appear  that 
she  intended  to  contract  in  relation  to  her  separate  estate  ;  ^ 
but  it  is  said,  that  it  is  not  so  much  a  question  of  her  intention 
as  to  her  separate  estate,  as  it  is,  whether  she  intended  to  con- 
tract a  del)t  of  her  own.'* 

§  681.  Although  a  husband  has  a  right  to  curtesy  or  a  life- 
estate  in  his  wife's  real  estate  if  he  survives  her,  yet  he  cannot 
convey  that  estate  or  interest  during  her  life,  without  her  con- 
sent, so  as  to  give  possession  to  the  purchaser ;  nor  can  his 
creditors  seize  it  on  execution ;  ^  nor  can  the  husband  in  any 
way  incumber  the  estate,  as  by  a  mechanic's  lien  for  building  a 

^  Rogers  v.  "Ward,  8  Allen,  387;  Davenport  v.  Davenport,  5  Allen,  464; 
Parker  v.  Kane,  4  Allen,  346  ;  Heugh  v.  Jones,  32  Penn.  St.  432  ;  Major  v. 
Symmes,  19  Ind.  117;  Conway  v.  ISmith,  13  Wis.  125;  Marshall  v.  Miller, 
3  Met.  (Ky.)  333  ;  Butler  v.  Robertson,  11  Tex.  142;  Carpenter  v.  Leonard, 
5  Min.  155;  McCormick  i;.  Holbrook,  22  lo.  487  ;  Tucker  v.  Guest,  46  Mo. 
339;  Lyon  v.  Swayne,  7  Phila.  154;  Ainsley  v.  Mead,  3  Lansing,  116; 
Lindley  v.  Cross,  31  Ind.  106;  Marsh  v.  Alford,  5  Bush,  392;  West- 
gate  V.  Monroe,  100  Mass.  227.  In  Missouri,  proceedings  to  charge  a 
married  woman's  separate  estate  can  only  be  taken  in  a  court  of  chancery. 
Schafroth  v.  Ambs,  46  Mo.  114.  So  in  Alabama,  Pollard  v.  Cleveland,  43 
Ala.  102;  and  in  New  Jersey,  Harford  v.  Baker,  20  N.  J.  Eq.  101. 

*  Tracy  v.  Keith,  11  Allen,  214;  Kimra  v.  Weippcrt,  46  Mo.  532;  Dun- 
bar v.  Meyer,  43  Miss.  679 ;  Harris  v.  Dole,  5  Bush,  61 ;  Demott  v.  Muller, 
8  Abb.  N.  Y.  335. 

^  Miller  v.  Brown,  47  Mo.  504;  jNIorse  v.  Mason,  103  Mass.  560;  Guion 
V.  Doherty,  43  Miss.  538. 

*  Miller  V.  Brown,  47  Mo.  504;  Kantrowitz  r.  Prater,  31  Ind.  92;  Smith 
V.  Howe,  31  Ind.  233;  Corning  v.  Lewis,  54  Barb.  51. 

'■  Jenney  v.  Gray,  5  Ohio  St.  45 ;  Coleman  r.  Satterfield,  2  Head, 
259. 


282  TRUSTEES    FOR   MARRIED   WOMEN.         [CHAP.  XXII. 

house  upon  it;i  nor  by  mortgage  ,2  —  without  the  agreement, 
consent,  or  concurrence  of  the  wife. 

§  682.  The  statutes  of  the  several  States  have  various  provi- 
sions enabling  a  married  woman  to  make  a  will  of  her  separate 
property.  In  some  States,  the  will  must  be  assented  to  by  the 
husband  ;  in  others,  it  need  not  be.  In  some  States,  she  can 
give  the  whole  estate  to  persons  other  than  her  husband ;  in 
others,  she  can  give  only  a  part  away  from  her  husband.  In 
the  absence  of  a  will  by  the  wife,  the  husband  takes  all  her 
personal  property  at  her  decease  as  at  common  law,  and  the 
use  of  her  real  estate  for  life,  if  there  is  issue  born  alive.^ 

§  683.  By  force  of  the  statutes  in  several  States,  married 
women  may  now  be  appointed  trustees,  guardians,  executors, 
and  administrators,  and  may  give  bonds  for  the  faithful  per- 
formance of  their  duties.*  In  many  States,  she  may  sue  with- 
out her  husband  for  all  matters  touching  her  separate  estate  or 
contracts  ;  she  may  submit  to  arbitration  ;  ^  and  in  some  States 
she  may  even  sue  her  husband,  like  any  stranger,  in  a  court  of 
law.6 

§  684.  A  married  woman  may  sell  any  of  her  chattel  inter- 
ests, and  take  notes  payable  to  herself,  and  the  notes  remain 
her  personal  property  ; '  and  if  a  note  for  the  wife's  property  is 
taken  in  the  name  of  the  husband,  she  may,  upon  proving  the 

1  Briggs  V.  Titus,  7  R.  I.  441;  Selph  v.  Howland,  23  Miss.  264;  Spin- 
ning V.  Blackburn,  13  Ohio  St.  131 ;  Pell  v.  Cole,  2  Met.  (Ky.)  252  ;  Hughes 
V.  Peters,  1  Cold.  67;  Washburn  v.  Burn,  34  N.  J.  18. 

«  Patterson  v.  Flanagan,  1  Ala.  (S.  C.)  427. 

8  Rawsom  v.  Nichols,  22  N.  Y.  110;  Brown  v.  Brown,  6  Humph.  127; 
Wilkinson  v.  Wright,  6  B.  Hon.  576. 

*  Stat,  of  Mass.  1869,  c.  409 ;  Springer  v.  Berry,  47  Me.  330. 

*  Palmer  v.  Davis,  2  N.  Y.  242. 
«  Scott  V.  Scott,  13  Ind.  225. 

■>  Nims  V.  Bigelow,  45  N.  H.  343 ;  Huff  v.  Wright,  39  Ga.  49 ;  Cheever 
v.  Wilson,  9  Wall,  108 ;  Jay  v.  Long  Island  R.R.  2  Daly,  401. 


§§  681-686.]        SEPARATE  CONTRACTS.  283 

fact,  claim  the  proceeds,^  and  she  may  even  hold  a  mortgage 
upon  her  husband's  estate.^ 

§  685.  As  a  general  rule,  a  wife  cannot  convey  her  real  es- 
tate without  her  husband  joining  in  the  deed,  or  without  his 
concurrence  or  assent  in  writing,  as  he  is  entitled  to  curtesy  in 
her  real  estate.  But  this  depends  upon  the  construction  of  the 
statutes  in  each  State ;  ^  under  an  early  statute  in  Massachu- 
setts, now  repealed,  a  wife's  sole  deed  of  her  real  estate  was 
held  to  be  valid.*  A  married  woman  may  now  be  bound  by  her 
covenants  in  the  deed  of  her  land,  it  being  a  contract  in  rela- 
tion to  her  separate  property  ;  ^  and  so  a  married  woman  may 
be  compelled  specifically  to  perform  a  contract  to  convey  her 
land,  provided  the  contract  is  executed  according  to  the  statute  ; 
for  if  a  husband's  written  consent  is  necessary  to  a  valid  con- 
veyance of  her  land,  his  written  consent  is  necessary  to  a  valid 
agreement  to  convey,  and  if  that  is  wanting,  the  contract  can- 
not be  enforced.^ 

§  686.  If  a  married  woman  has  no  separate  property,  she  can 
make  no  contracts.     The  enabling  power  of  the  statutes  does 

>  Conrad  v.  Shomo,  44  Penn.  St.  193 ;  Buck  v.  Gibson,  37  Vt.  653 ; 
Baker  v.  Gregory,  28  Ala.  o44;  Mitchell  v.  Mitchell,  20  N.  J.  Eq.  234; 
Whitehead  v.  Whitehead,  64  N.  C.  538 ;  Lampley  v.  Watson,  43  Ala.  377 ; 
Marsh  v.  jNIarsh,  43  Ala.  677  ;  Molton  v.  Morton,  43  Ala.  651. 

"  Power  V.  Lester,  23  N.  Y.  527 ;  Nims  v.  Bigelow,  45  N.  H.  343  ; 
Berais  v.  Call,  10  Allen,  512. 

5  Wright  r.  Brown,  44  Penn.  St.  224;  James  v.  Everly,  3  Grant,  150; 
Murphy  u.  Bright,  3  Grant,  296;  Camden  v.  Vail,  23  Cal.  633;  Eaton  v. 
George,  42  N.  H.  375;  Maclay  v.  Love,  25  Cal.  367;  Miller  v.  Iline,  13 
Ohio  St.  565;  Alexander  v.  Saulsbury,  1  Ala.  436;  Pentz  v.  Simonson, 
Beasl.  232;  Hough  tJ.  Blythe,  20  Ind.  24;  IM:ijor  v.  Symmes,  19  Ind.  117; 
Dodge  V.  Hollinshead,  6  Min.  25 ;  Miller  v.  Wetherby,  12  lo.  415 ;  Stoker 
V.  Whitlock,  3  INIet.  (Ky.)  244;  Myetsky  v.  Goery,  2  Brews.  302. 

•»  Beal  V.  Warren,  2  Gray,  447.     See  Mass.  Gen,  Stat.  c.  108,  §  3. 

*  Basford  v.  Peirson,  7  Allen,  524. 

*  Baker  v.  Hathaway,  5  Allen,  103;  Jewett  v.  Davis,  10  Allen,  72; 
Woodward  v.  Seaver,  38  N.  H.  29.  And  see  Rumfelt  v.  Clemens,  46  Penn. 
St.  455. 


284  TRUSTEES    FOR   MARRIED   WOMEN.         [CHAP.  XXTI. 

not  go  to  that  extent.  Tlius  if  a  married  woman,  having  no 
separate  property,  borrows  money  and  gives  a  note,  for  the 
prospective  purpose  of  purchasing  land  to  her  separate  use,  and 
afterwards  purchases  the  land,  and  takes  a  deed  in  her  own 
name,  the  note  is  void,  as  it  is  in  no  sense  a  contract  in  rela- 
tion to  her  separate  property.^  But  it  is  otherwise,  if  a  direct 
purchase  is  made  to  herself,  and  a  note  given  to  the  vendor  of 
the  land  for  the  purchase-money  ;  for  although,  when  the  nego- 
tiation commenced,  she  had  no  separate  property  concerning 
which  she  could  contract,  yet,  as  soon  as  there  was  a  convey- 
ance to  her  separate  use,  she  had  title  to  separate  property,  and 
could  make  a  valid  contract  by  note  or  bond  to  pay  the  pur- 
chase-money.2 

■  Ames  V.  Foster,  42  N.  H.  381;  Dunning  v.  Pike,  46  Me.  461 ;  John- 
son V.  Cliisson,  14  Ind.  415;  Whitworth  v.  Carter,  43  Miss.  61;  Dunbar  v. 
Meyer,  43  Miss.  679. 

'  Chapman  v.  Foster,  6  Allen,  136;  Bullin  v.  Dillage,  37  N.  Y.  35; 
Darby  v.  Calligan,  16  N.  Y.  21;  Knapp  v.  Smith,  27  N.  Y.  277 ;  Estabrook 
V.  Earle,  97  Mass.  302 ;  Stewart  v.  Jenkins,  6  Allen,  303 ;  Pemberton  v. 
Johnson,  46  Mo.  342.     But  see  Carpenter  v.  Mitchell,  50  111.  470.  ' 


§  686.]  TRUSTS   FOR   CHARITABLE   USES.  285 


CHAPTER   XXIII. 


TRUSTS    FOR    CHARITABLE  USES. 

§  687.  General  remarks  upon  charitable  trusts. 

§  688.  The  origin  of  charitable  trusts. 

§  689.  History  of  charitable  trusts. 

§  690.  Whether  they  originated  in  the  civil  law. 

§  691.  Early  English  legislation  upon  charities. 

§  692.  Statute  43  Eliz.  c.  4,  1601. 

§§693,694.  Importance   of  the  statute,  and  whether  the  equity  jurisdiction  of  courts 
over  charities  originated  in  it. 

§  695.  Whether  the  statute  ousted  the  courts  of  their  original  jurisdiction. 

§  696.  Three  things  accomplished  by  the  statute. 

§  697.  Definitions  of  a  public  charity  or  a  charitable  use. 
§§  698,  699.  Gifts  for  the  poor,  their  construction  and  application. 

§  700.  Cliaritable  gifts  for  educational  purposes. 

§  701.  Gifts  for  religious  purposes  are  charitable. 

§  702.  Gifts  for  religious  purposes  outside  of  the  Established  Church  in  England. 

§  703.  Gifts  to  parish  ministers,  whether  charitable  or  not. 

§  704.  Gifts  for  public  works. 

§  705.  Gifts  for  general  and  indefinite  public  purposes. 

§  706.  Whether  gifts  for  tombs,  vaults,  or  burj-ing-jjrounds  are  charitable. 

§  707.  The  source  of  the  charitable  gift  is  immaterial. 

§  708.  Incomplete  charitable  gifts. 

§  709.  The  general  rules  of  construction  applied  to  charitable  gifts. 

§  710.  Gifts  which  are  not  charitable. 

§  711.  Where  a  charitable  purpose  and  a  purpose  not  charitable  are  joined;  and  other 
not  charitable  purposes. 

§  712.  The  cases  of  Omanney  v.  Butcher  and  Williams  v.  Kershaw,  and  criticisms 
upon  them. 

§  713.  Where  gifts  are  too  uncertain  to  be  administered  as  charitable. 

§  714.  Where  the  sum  to  be  applied  is  uncertain,  as  well  as  the  objects  to  which  it  is 
to  be  applied. 

§  715.  Where  the  purpose  of  the  gift  is  contrary  to  law. 

§  716.  Rules  for  administering  charities  must   be   applied  according  to  the  subject- 
matter. 

§  717.  Courts  can  exercise  only  judicial  powers. 

§718.  Distinction  between  judicial  powers  and  prerogative  powers  exercised  bv  the 
Lord  Chancellor. 

§  719.  Charities  administered  by  the  judicial  powers  of  courts,  and   b}'  the  preroga- 
tive of  the  king. 

§  720.  Cases  of  charities  administered  by  the  judicial  powers  of  the  court. 

§  721.  Whether  new  trustees  appointed  by  courts  can  exercise  the  powers  and  dis- 
cretion conferred  b^'  a  donor. 


286  TRUSTS   FOR   CHARITABLE    USES.         [CHAP.  XXIII. 

§  722.  Where  courts  can  carry  a  charity  into  effect,  although  no  trustees  are  appointed 
by  the  donor. 

§  723.   Cypres  as  a  rule  of  construction,  and  where  it  may  be  applied. 
§§  724,  725.  Cases  where  the  rule  of  construction  cy  pi'es,  lias  been  applied. 

§  726.  Where  the  purpose    of  a  gift  is  one  particular  charity  there  can  be  no  con- 
struction cy 2^res,  if  that  particular  purpose  fail. 
§§  727,  728.  The  doctrine  of  cy  pres  a  rule  of  construction. 

§  729.  Cases  in  the  United  States  where  donations  to  charity  would  not  be  carried 
into  effect. 

§  730.  Charitable  gifts  to  voluntary  societies,  and  other  indefinite  trustees. 

§  731.  Courts  will  follow  the  intention  of  the  donor  in  appointing  trustees  to  carrj'  a 
charitable  gift  into  effect. 

§  732.  Uncertainty  not  an  objection  to  a  charitable  trust,  if  there  is  a  legal  mode  of 
reducing  it  to  that  degree  of  certainty  required  by  the  trust. 
§§  733,  734.  A   charitable  gift  must  be  accepted  and  carried  into  effect  as  made,  and 
cannot  be  altered  or  diverted. 

§  735.  Trustees  cannot  be  removed  and  changed  by  courts  for  the  mere  convenience  of 
parties. 
§§  736,  737.  The  rules  against  perpetuities  do  not  apply  to  charitable  trusts. 

§  738.  Gifts  for  charitable  purposes  may  be  accumulated  beyond  the  period  allowed  in 
private  bequests. 

§  739.  How  far  courts  will  aid  defective  conveyances  to  charitable  uses. 

§  740.  Whether  assets  will  be  marshalled  to  pay  charitable  legacies. 

§  741.  A  charitable  bequest  may  be  paid  over   to   foreign   trustees   if  they  will   re- 
ceive it. 

§  742.  Acts  of  incorporation  and  visatorial  powers. 

§  743.  Where  charitable  gifts  are  made  to  an  old  corporation. 

§  744.  Remedies  for  a  breach  of  trust  by  trustees.     No  reversion  to  heirs  of  the  donor. 

§  745.  Whether  the  statute  of  limitations  runs  against  a  charitable  trust. 

§  746.  Pleadings  in  charitj'  suits  need  not  be  so  accurate  and  formal  as  in  suits  to 
enforce  private  trusts. 

§  747.  As  to  costs  in  charity  suits. 

§  748.  Charitable  trusts  in  the  several  States.     The  cases  collected  and  commented  on 
in  a  note. 

§  687.  Trusts  for  charitable  uses  form  a  large  and  impor- 
tant class  of  trusts.  The  questions  that  arise  under  this  head 
are  numerous,  and  often  complicated  and  difficult  of  solution. 
Charitable  trusts  include  all  gifts  in  trust  for  religious  and 
educational  purposes  in  their  ever-varying  diversity  ;  all  gifts 
for  the  relief  and  comfort  of  the  poor,  the  sick,  and  the 
afflicted ;  and  all  gifts  for  the  public  convenience,  benefit, 
utility,  or  ornament,  in  whatever  manner  the  donors  desire 
to  have  them  applied.  These  trusts  are  governed  in  many 
respects  by  the  same  rules  that  govern  trusts  for  the  private 
benefit  of  individuals  or  families.  There  must  be  the  same 
proof  of  the  due  execution  of  a  written  instrument,  whether  it 


§  687.]  TRUSTS    FOR   CHARITABLE    USES.  287 

creates  a  public  charity  or  a  private  trust,  and  in  many  respects 
the  same  rules  of  construction  will  apply,  in  order  to  determine 
the  intention  of  the  donor  ;  ^  but  if  it  is  once  determined  that  the 
donor  intended  to  create  a  public  charity,  very  different  rules 
from  those  that  are  applied  in  establishing  and  administer- 
ing private  trusts  will  be  applied,  in  order  to  give  effect  to 
the  intention  of  the  donor  and  establish  the  charity.  Thus, 
if  in  a  gift  for  private  benefit  the  cestuis  que  trust  are  so  un- 
certain that  they  cannot  be  identified,  or  cannot  come  into 
court  and  claim  the  benefit  conferred  upon  them,  the  gift  will 
fail,  and  result  to  the  donor,  his  heirs  or  legal  representatives. 
But  if  a  gift  is  made  for  a  public  charitable  purpose,  it  is 
immaterial  that  the  trustee  is  uncertain,  or  incapable  of  tak- 
ing, or  that  the  objects  of  the  charity  are  uncertain  and  indefi- 
nite.. Indeed,  it  is  said  tliat  vagueness  is,  in  some  respects, 
essential  to  a  good  gift  for  a  public  charity,  and  that  a  public 
charity  begins  where  uncertainty  in  the  recipient  begins.^  So 
if  a  gift  for  a  private  purpose  tends  to  create  a  perpetuity, 
it  will  be  void ;  but  a  gift  for  a  public  charity  is  not  void, 
although  in  some  forms  it  creates  a  perpetuity.^  It  is  said, 
that  courts  look  with  favor  upon  charitable  gifts,  and  take 
special  care  to  enforce  them,  to  guard  them  from  assault,  and 
protect  them  from  abuse.  And  certainly  charity  in  thought, 
speech,  and  deed,  challenges  the  admiration  and  affection  of 
mankind.  Christianity  teaches  it  as  its  crowning  grace  and 
glory ;  and  an  inspired  apostle  exhausts  his  powerful  eloquence 
in  setting  forth  its  l)eauty,  and  the  notliingness  of  all  thino-s 
without  it.  Charitable  bequests  are  said  to  come  within  that 
department  of  human  affairs  where  the  maxim,  ut  res  magis 
valeat,  quam  j^ereat^  has  been,  and  should  be  applied."*      The 

'  Ante,  §  88. 

"^  Fontain  v.   RavencI,  17  How.  384;  Saltonstall  i'.  Sanders,  11  Allen, 
456. 

^  Odell  V.  Odell,  10  Allen,  1  ;  Williams  c.  Williams,  4  Selden,  533. 
*  Saltonstall  t'.  Sanders,  11  x\.llun,  455. 


288  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

constitution  of  one  State  at  least  strictly  enjoins  all  legis- 
latures and  magistrates  in  future  periods  to  countenance  and 
inculcate  the  principles  of  humanity  and  general  benevolence, 
and  public  and  private  charity.^ 

§  688.  The  origin  of  this  peculiar  form  of  jurisprudence 
has  been  a  matter  of  much  curious  and  learned  speculation. 
It  is  not  the  object  of  this  treatise  to  enter  into  such  investi- 
gations, but  to  state  the  present  condition  of  the  law,  for  the 
benefit  of  those  who  are  called  upon  to  aid  in  its  administra- 
tion, and  who  have  little  time  to  spend  upon  collateral  matters, 
however  interesting.  It  may,  however,  in  passing,  be  proper 
to  suggest,  that  the  same  religious  spirit  and  charitable  senti- 
ment which  led  individuals  and  communities  to  devote  large 
sums  of  money  to  pious  uses,  religious  houses,  churches,  and 
educational  institutions,  to  the  relief  of  the  old  and  the  poor, 
and  to  the  general  promotion  of  the  public  convenience,  util- 
ity, and  good,  also  led  the  makers  and  administrators  of  pub- 
lic laws  to  take  a  favorable  and  liberal  view  of  such  charitable 
donations. 

§  689.  The  early  history  of  the  law  of  charitable  uses,  like 
the  'early  history  of  all  the  leading  branches  of  the  English  or 
common  law,  is  extremely  obscure.  That  there  were  great 
charitable  institutions,  such  as  universities,  colleges,  and 
schools  ;  and  great  religious  houses,  such  as  abbeys,  monas- 
teries, nunneries,  and  the  like  ;  that  there  were  asylums  and 
retreats  for  the  poor  and  sick ;  and  that  almsgiving  was  com- 
mon, is  known ;  and  that  all  these  institutions  were  in  some 
way  established  by  the  charity  of  pious  men  is  known  :  but  the 
beginning  of  these  charitable  foundations  cannot  be  traced  with 
certainty ;  nor  is  it  easy  to  trace  the  history  of  the  public  laws 
by  which  they  were  encouraged,  fostered,  protected,  and  regu- 

^  Constitution  of  Mass.  c.  5,  §  2. 


§§  687-690.]  ORICxIN    AND    HISTORY.  289 

lated.  Among  the  early  indications  of  the  religious  or  charita- 
ble disposition  of  the  people  are  the  statutes  of  mortmain,  so 
called,  to  prevent  too  large  a  proportion  of  the  property  of  the 
realm  from  being  given  to  religious  houses,  or  to  a  dead  hand, 
where  it  could  not  be  readily  used  in  the  increasing  trade  and 
commerce  of  the  kingdom.  Notwithstanding  these  prohibitory 
statutes,  care  was  taken  to  enforce  the  employment  of  bequests 
for  charitable  purposes.  An  early  statute  sets  forth  that  many 
hospitals,  founded  as  well  by  noble  kings  of  the  realm,  and 
lords  and  ladies,  as  by  divers  other  estates  to  the  honor  of  God 
and  his  glorious  mother,  in  aid  and  merit  of  the  souls  of  the 
said  founders,  to  the  which  hospitals  the  said  founders  had 
given  a  great  part  of  their  movable  goods  for  the  building  of 
the  same,  and  a  great  part  of  their  lands  and  tenements,  there- 
with to  sustain  impotent  men  and  women,  lazars,  men  out  of 
their  wits,  and  poor  women  with  child,  and  to  nourisli,  relieve, 
and  refresh  other  poor  people  in  the  same,  were  then  for  the 
most  part  decayed,  and  the  goods  and  profits  misemployed. 
The  act,  in  providing  a  remedy,  directs  that,  as  to  those 
hospitals  which  were  of  the  patronage  and  foundation  of  the 
king,  the  ordinaries  were  to  institute  inquiries,  and  certify  the 
inquiries  into  the  king's  chancery  ;  and  as  to  all  other  hospitals 
they  were,  after  due  inquiry,  to  make  the  necessary  correction 
and  reformation.^ 

§  690.  It  is  quite  certain,  that  the  ciyil  or  Roman  law  was 
construed  most  indulgently,  in  favor  of  legacies  and  bequests 
for  pious,  charitaljle,  and  public  uses,  before  the  empire  became 
Christian  ;2  but  it  must  be  remembered,  that  Christianity,  and 
the  charitable  sentiments  which  it  inculcates  and  begets,  had 
widely  spread  among  ti\e  people  before  the  government  pul)licly 
announced  itself  as  Christian.     After  the  final  conversion  of 

>  2  Hen.  V.  Stat.  1,  c.  1. 

'  Dig.  Lib.  oo,  tit.  2;  De  Usu  et  Usufruc.  Legatorum,  §§.  IG,  17;  L'd 
Ch.  J.  Wilinot,  notes  53,  34:. 

VOL.  II.  19 


290  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

the  government  to  the  Christian  religion,legacies  to  pious  uses, 
including  legacies  to  works  of  piety  and  charity,  whether  they 
related  to  temporal  or  spiritual  concerns,  were  deemed  entitled 
to  peculiar  favor  as  privileged  testa ments.^  It  is  not  impossible, 
nor  improbable,  that  the  Christianized  maxims  of  the  civil  law 
relating  to  pious  and  charitable  trusts,  were  transferred  into 
the  jurisprudence  of  England.  Lord  Thurlow,  indeed,  said 
that  the  doctrine  of  charities  grew  up  from  the  civil  law.^  But 
it  must  be  observed,  that,  as  soon  as  Christianity  spread  into 
Britain,  the  same  ideas  that  modified  the  Roman  law  would  be 
at  work  upon  the  public  mind  of  England,  and  would  mould 
and  fashion  the  law  and  institutions  of  that  country  in  the  same 
way  that  they  had  influenced  the  civil  law.  It  must  also  be 
remembered,  that  for  a  long  time  the  laws  of  England  went 
much  further  than  the  civil  law  in  devoting  the  estates  of  de- 
ceased persons  to  charity.  For  until  the  statute  of  distributions, 
22  Car.  II.  c.  13,  was  enacted,  the  ordinary  was  obliged  to  apply 
a  portion  of  the  residue  of  every  intestate  estate  to  charity,  on 
the  ground  that  there  was  a  general  principle  of  piety  and 
charity  in  e\ery  man.^  If  such  was  tlie  English  method  of 
dealing  with  intestate  estates,  a  method  not  derived  from  the 
civil  law,  certainly  wills  and  grants,  appointing  or  authorizing 
such  charitable  distributions,  would  meet  with  especial  favor 
and  indulgence  in  the  courts. 

§  691.  So  deeply  imbedded  were  these  charitable  institutions 
in  the  minds  of  the  people,  that  Henry  YIIL,  in  his  struggle 
against  the  supremacy  of  the  pope,  felt  obliged  to  strike  at 
all  these  religious  and  charitable  foundations.  It  is  true  that 
abbeys,  monasteries,  and  other  religious  houses  were  the  prin- 
cipal sufferers ;  but  some  of  the  acts  under  which  the  king  pro- 

»  Domat,  Civil  Law,  B.  4,  tit.  2,  §  6. 

2  White  V.  White,  1  Bro.  Ch.  12;  Moggridge  v.  Thackwell,  7  Ves.  36, 
G9;  Mills  v.  Farmer,  1  Mer.  55,  94,  95;  Jackson  v.  Phillips,  14  Allen,  539. 

3  2  Black.  491,  495;  Pei-tins,  §  486;  Tudor,  Char.  Uses,  210. 


§§690,691.]  EARLY   LEGISLATION.  291 

ceeded,  embraced  colleges,  chapels,  chantries,  hospitals,  and 
fraternities;^  and  St.  Thomas's  Hospital  in  Southwark  was 
actually  surrendered.'-^  It  is  further  said,  that  the  great  uni- 
versities were  obliged  to  petition  the  king  that  they  miglit  not 
be  included  under  the  general  words  of  colleges  and  fraterni- 
ties.^ In  this  wide-spread  attack  upon  the  religious,  educa- 
tional, and  alms-giving  institutions  of  the  kingdom,  and  in  the 
confusion  attending  u{)on  the  transition  from  Papacy  to  Epis- 
copacy, it  cannot  be  doubted  that  all  charities  were  much 
neglected,  and  that  many  of  them  abused  or  misemployed  their 
funds.  Tlie  short  reign  of  Edward  VI.,  and  the  disturbed  reign 
of  Philip  and  Mary,  tended  rather  to  increase,  than  to  correct 
these  abuses.  But  as  soon  as  Elizabeth  was  firmly  seated  upon 
the  throne,  and  the  Reformation  was  assured,  general  attention 
was  turned  to  the  correction  and  encouragement  of  charities. 
In  tlie  first  year  of  her  reign,  the  act  that  restored  the  first 
fruits  to  the  crown  exempted  schools  and  hospitals  from  tlie 
payment  thereof.'*  In  the  same  act  are  provisions  in  favor  of 
the  universities,  the  colleges  of  Eton  and  Winchester,  and  the 
chapel  of  St.  George.  Soon  after,  statutes  were  passed,  regu- 
lating leases  of  lands  belonging  to  ecclesiastical  and  elee- 
mosynary institutions.  Acts  were  passed  autliorizing  private 
individuals  to  establish  and  endow  hospitals.  The  Stat.  14 
Eliz.  c.  14,  forcibly  illustrates  the  indulgence  and  encourage- 
ment which  was  extended  to  charitable  gifts.  It  recited  that 
certain  hospitals  had  been  erected  by  Ilcnry  YIII.  and  Edward 
VI.,  and  that  lands  had  been  given  by  other  persons,  and  it 
was  hoped  many  more  would  likewise  charitably  give  ;  and  that 
many  such  gifts  and  assurances  had  been,  and  were  likely  to  be 
made  by  the  last  wills  .of  the  givers  thereof,  at  which  time,  for 
want  of  counsel  or  other  opportunities,  it  might  happen  that 
the  right  names  of  the  said  corporations  should  not  be  truly 

'  1  Burnet  Hist.  Reform,  pp.  346,  347,  404-434;  33  Hen.  VIII.  c.  27. 
a  Ibid.  '  Ibid. 

*  1  Eliz.  c.  4,  §§  34,  35,  40. 


292  TRUSTS    FOR    CHARITABLE   USES.         [CHAP.  XXIII. 

expressed,  whereby  some  question  might  grow  of  the  validity  of 
such  grants,  gifts,  or  devises  ;  and  it  was  enacted,  tliat  all  gifts, 
grants,  legacies,  devises,  and  assurances,  made  or  to  be  made, 
of  any  lands,  tenements,  and  hereditaments,  by  will,  feoffment, 
or  otherwise,  to  the  use  or  for  the  relief  of  the  poor  in  any  hos- 
pital then  remaining,  and  being  in  esse,  and  employed  to  the 
relief  and  maintenance  of  the  poor  in  said  hospitals,  should  be 
as  good  and  available  in  law  according  to  the  true  meaning  of 
any  such  donor,  as  if  the  said  corporations  had  been  or  were  in 
writing,  or  deeds  of  such  gifts,  grants,  devises,  or  assurances, 
or  in  such  will  or  testament,  rightly  or  truly  named  ;  saving  to 
all  third  persons  their  rights  and  interests  in  the  land  given. 
The  Stat.  31  Eliz.  c.  6,  remedied  the  abuses  which  had  grown 
up  in  the  elections  and  presentations  to  churches,  colleges, 
schools,  hospitals,  societies,  and  other  charitable  organizations. 
The  39  Eliz.  c.  6,  authorized  the  queen  to  appoint  a  commission 
to  inquire  if  grants  or  gifts  to  hospitals  and  ather  charitable 
uses  were  misemployed,  and  if  so,  to  correct  the  abuses.  The 
Statutes  8  Eliz.  c.  11,  35  Eliz.  c.  3,  39  EUz.  c.  4,  21,  and  43 
Eliz.  c.  2  and  3,  relate  to  a  kind  of  compulsory  charity,  or  sup- 
port of  the  poor.  These  statutes,  and  especially  the  Stat.  43 
Eliz.  c.  2,  are  said  to  be  the  foundation  of  the  poor  laws,  so  long 
in  force  in  England  ;  and  to  them  we  may  trace  the  origin  of 
the  pauper  laws  in  force  in  the  various  States  of  this  country.^ 

§  692.  All  this  legislation  for  charity  finally  culminated  in  the 
Stat.  43  Eliz.  c.  4  (1601),  commonly  called  the  statute  of  char- 
itable uses.  The  charitable  objects  and  purposes  enumerated 
in  this  statute  are  as  follows  :  "  Relief  of  aged,  impotent,  and 
poor  people  ;  maintenance  of  sick  and  maimed  soldiers  and 
mariners  ;  schools  of  learning,  free-schools,  and  scholars  in 
universities ;  repairs  of  bridges,  ports,  havens,  causeways, 
churches,  sea-banks,  and  highways ;  education  and  preferment 
of  orphans  ;  relief,  stock,  or  maintenance  for  houses  of  correc- 

1  See  Boyle,  pp.  1-12.^ 


§§691,692.]  STATUTE   OF   ELIZABETH.  293 

tion  ;  marriages  of  poor  maids  ;  supportation,  aid,  and  lielp  of 
young  tradesmen,  handicraftsmen,  and  persons  decayed  ;  relief 
or  redemption  of  prisoners  or  captives  ;  aid  or  ease  of  any  poor 
inhabitants  concerning  payment  of  fifteens,  setting  out  of  sol- 
diers, and  other  taxes."  ^    Since  the  passage  of  this  statute,  all 

1  Tlu;  followinj^  abstract  of  the  statute,  as  given  by  Boyle,  is  here  inserted, 
as  it  is  not  readily  accessible  to  all :  — 

"The  preamble  sets  forth  that  property  of  every  kind  had  been  given, 
limited,  appointed,  and  assigned  by  the  queen  and  other  well  disposed  per- 
sons, for  some  or  other  of  the  {)urposes  there  specified,  of  which  tlie  follow- 
ing is  an  enumeration:  Relief  of  aged  and  impotent  and  poor  people; 
maintenance  of  sick  and  maimed  soldiers  and  mariners ;  schools  of  learn- 
ing; free-schools;  scholars  in  universities;  houses  of  correction;  repair 
of  bridges,  ports,  havens,  causeways,  churches,  sea-banks,  and  highways ; 
education  and  preferment  of  orphans  ;  marriages  of  poor  maids  ;  supporta- 
tion aiul  help  of  tradesmen,  handicraftsmen,  and  persons  decayed;  relief  or 
redemption  of  prisoners  or  captives ;  and  aid  or  ease  of  any  poor  inhabi- 
tants concerning  payment  of  fifteens,  setting  out  of  soldiers,  and  other 
taxes.  It  then  recites  that  the  lands  and  effects  so  appropriated  had  not 
been  duly  employed,  and,  for  redress  and  remedy  of  such  abuses  and 
breaches  of  trust,  proceeds  to  enact,  that  it  should  be  lawful  for  the  Lord 
Chancellor,  or  Lord  Keeper  of  the  Great  Seal,  and  for  the  Chancellor  of  the 
Duchy  of  Lancaster,  within  their  respective  jurisdictions,  to  award  commis- 
sions to  the  bishop  of  the  diocese  and  chancellor  (in  case  there  should  be 
any  bishop  of  that  -diocese  at  the  time),  and  to  other  persons,  authorizing 
them,  or  any  four  of  them,  to  inquire  as  well  by  the  oaths  of  twelve  men, 
as  by  all  other  good  and  lawful  ways  and  means,  of  all  gifts,  limitations, 
assignments,  and  appointments,  and  of  the  abuses,  breaches  of  trust,  mis- 
employments,  and  misgovernment  of  any  lands,  tenements,  rents,  annuities, 
profits,  hereditaments,  goods,  chattels,  money,  or  stocks  of  money,  thereto- 
fore given,  limited,  appointed,  or  assigned,  or  which  thereafter  should  be 
given,  limited,  appointed,  or  assigned,  to  or  for  any  the  charitable  and  godly 
uses  before  rehearsed.  And  that  the  commissioners  or  any  four  of  tiiem 
(upon  calling  the  parties  interested  in  any  such  lands,  &c.),  should  make 
incjuiry  by  tlie  oaths  of  twelve  men  or  more  of  the  county  (tlie  parties  inter- 
ested being  allowed  their  cliallenge),  and  upon  such  inquiry,  hearing,  and 
examining  thereof,  set  down  such  orders,  judgments,  and  decrees,  as  the 
said  lands,  &c.,  might  be  duly  and  faithfully  employed  to  and  for  such  of 
the  charitable  and  godly  uses  and  intents  before  rehearsed  respectively,  for 
which  they  were  given,  limited,  assigned,  or  appointed  by  the  donors  and 
founders  thereof,  wiiich  orders,  judgments,  and  decrees,  not  being  contrary 
or  repugnant  to  the  orders,  statutes,  or  decrees  of  the  donors  or  founders, 
should,  by  authority  of  the  then  parliament,  stand  firm  and  good  according 


294  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

the  objects  named  tlierein  are  considered  charitable.  There 
are  also  many  other  uses,  not  named  and  not  within  tlie  strict 

to  the  tenor  and  purport  thereof,  and  should  be  executed  accordingly,  until 
the  same  should  be  undone  or  altered  by  the  Lord  Chancellor,  or  Lord 
Keeper,  or  the  Chancellor  of  the  County  Palatine  of  Lancaster  respectively, 
within  their  several  jurisdictions,  upon  complaint  by  any  party  grieved  to  be 
made  to  them, 

*'  Sect.  2.  It  is  then  provided  that  the  act  should  not  extend  to  the  two 
universities,  the  colleges  of  Westminster,  Eton,  or  Winchester,  or  to  any 
cathedral  or  collegiate  church. 

"  Sect.  3.  Also  that  it  should  not  extend  to  any  city  or  town  corporate, 
or  to  any  lands  or  tenements  given  to  the  uses  aforesaid  within  any  such  city 
or  town  corporate,  where  should  be  a  special  governor  or  governors  to  gov- 
ern or  direct  such  lands,  tenements,  or  things  disposed  of  to  any  the  uses 
aforesaid;  nor  to  any  college,  hospital,  or  free-school,  which  should  have 
special  visitors  or  governors  or  overseers  appointed  them  by  their  founders. 

"  Sect.  4.  It  is  further  provided  that  the  jurisdiction  or  power  of  the 
ordinary  should  not  be  prejudiced. 

'•Sect.  5.  That  no  person  should  be  appointed  or  act  as  commissioner 
or  juror  who  should  have  possession  of  or  pretend  title  to  any  of  the  said 
lands  or  other  property. 

"  Sect.  6.  That  bona  fide  purchasers  without  notice  should  not  be  im- 
peached by  the  decrees  or  orders  of  the  commissioners  for  or  concerning 
their  estate  or  interest  in  any  lands,  &c.,  given,  limited,  or  appointed  to 
charitable  uses.  But  that,  nevertheless,  the  commissioners  should  make 
decrees  and  orders  for  recompense  to  be  made  by  any  person  or  persons, 
who,  being  put  in  trust  or  having  notice  of  the  charitable  use,  should  break 
the  trust  or  defraud  the  use,  and  also  against  their  heirs,  executors,  and 
administrators,  having  assets  in  law  or  equity,  so  far  as  the  same  assets 
would  extend. 

"  Sect.  7.  The  act  then  proceeds  to  except,  out  of  the  authority  vested 
in  the  commissioners,  all  lands  and  hereditaments  in  any  manner  assured  or 
come  to  the  queen's  majesty,  or  to  Henry  VIII.,  Edward  VI.,  or  Queen 
Mary  ;  but  enacts,  that,  if  any  such  should  have  been  given,  appointed,  or 
assigned  to  charitable  uses  since  the  beginning  of  her  majesty's  reign,  they 
should  be  within  the  scope  of  the  commissioner's  inquiry. 

"  Sect.  8.  It  then  goes  on  to  enact,  that  all  orders,  judgments,  and 
decrees  of  the  commissioners  should  be  certified  under  seal  into  the  Court 
of  Chancery,  or  into  the  Court  of  Chancery  within  the  County  Palatine  of 
Lancaster,  according  to  the  jurisdiction,  within  such  convenient  time  as 
should  be  limited  in  the  commissions. 

"  Sect.  9.  And  that  the  Lord  Chancellor,  or  Lord  Keeper  and  the  Chan- 
cellor of  the  Duchy,  should  within  their  several  jurisdictions  take  such  order 


§§  692,  693.]  STATUTE    OF    ELIZABETH.  295 

letter  of  the  statute,  but  which,  coming  within  its  spirit,  equity, 
and  analogy,  are  considered  charitable.  ♦ 

§  693.  This  statute  has  filled  a  large  space  in  judicial  in- 
quiries ;  and  it  was  supposed  for  a  time  that  it  was  the  origin 
of  the  jurisdiction  of  courts  of  equity  over  the  subject  of  charities. 
There  are  few  reports  of  cases  determined  in  chancery  prior  to 
the  time  of  Elizabeth  ;  while  there  are  few  cases  at  law,  in  the 
argument  and  decision  of  which,  no  reference  was  made  to  a 
jurisdiction  in  chancery. ^  These  facts  led  Lord  Loughborough 
to  observe,  that  "  it  does  not  appear  that  this  court,  at  that 
period,  had  cognizance  upon  informations  for  the  establishment 
of  charities.  Prior  to  the  time  of  Lord  Ellcsmcre  (1596),  as 
far  as  the  tradition  of  the  times  immediately  following  goes, 
there  were  no  such  informations  as  that  upon  which  I  am  now 
sitting  (an  information  to  establish  a  charity)  ;  but  they  made 
out  their  case  as  well  as  they  could  afe  law."^     The  same  facts 

for  the  due  execution  of  all  or  any  of  the  said  judgments,  decrees,  and 
orders,  as  to  either  of  them  should  seem  fit  and  convenient. 

*'  Sect.  10.  The  act  lastly  provides  a  remedy  for  persons  aggrieved  by 
the  orders  or  decrees  so  certified  by  the  commissioners,  by  declaring  that 
complaint  might  be  made  to  the  Lord  Chancellor,  or  Lord  Keeper,  or  the 
Chancellor  of  the  Duchy  of  Lancaster  fur  redress;  and  that  upon  such  com- 
plaint the  said  Lord  Chancellor,  or  Lord  Keeper,  or  the  said  Chancellor  of 
the  Duchy,  might  according  to  their  several  jurisdictions,  by  such  course  as 
to  their  wisdom  should  seem  meetest,  the  circumstances  of  the  case  con- 
sidered, proceed  to  the  examination,  hearing,  and  determining  thereof;  and 
upon  hearing  thereof  should  and  might  amend,  diminish,  alter  or  enlarge 
the  orders,  judgments,  and  decrees  of  the  connnissioners,  as  should  be 
thought  to  stand  with  equity  and  good  conscience  according  to  the  true 
intent  and  meaning  of  the  donors  and  founders ;  and  should  and  might  tax 
and  award  good  costs  of  suit  by  their  discretions  against  such  persons  as 
they  should  find  to  complain  unto  them  without  just  and  sufficient  cause." 

'  Porter's  Case,  1  Kep.  22  a;  Gibbons  v.  Maltyard,  Poph.  G;  Thctford 
School,  8  Rep.  130 ;  The  Skinners'  Case,  Moore,  120,  pi.  277 ;  Annis's 
Case,  Anderson,  43;  Perkins,  5G.) ;  Brnerton's  Case,  6  Rep.  2;  Partridge 
V.  Walker,  Duke,  360  ;  Hewctt  v.  Wotton,  cited  4  Rep.  lO'J  b;  Duke,  4(J9; 
Chibnal  v.  Whitton,  4  Rep.  110  a;  Martidall  v.  Martin,  Cro.  Eliz.  288. 

^  Attorney-General  v.  Bowyer,  3  V^es.  714,  726;  Ludlow  v.  Greenhouse, 


296  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

and  authorities  led  the  Supreme  Court  of  the  United  States  to 
come  to  a  sim'ilar  conclusion.^ 

§  694.  On  the  other  hand,  it  is  said  that  the  statute  does  not 
purport  to  take  away  any  authority  from  the  Court  of  Chancery, 
or  to  give  any  new  jurisdiction,  but  it  only  authorizes  a  com- 
mission to  inquire  into  and  correct  abuses,  allowing  an  appeal 
to  the  Lord  Chancellor  in  certain  cases.  It  is  further  said  that 
the  Court  of  Chancery,  immediately  after  tlie  statute,  enter- 
tained original  bills  in  charity  cases,  and  seemed  to  refer  its 
jurisdiction,  not  to  the  statute,  but  to  its  original  and  inherent 
jurisdiction  over  all  matters  of  trust  and  confidence.^  Still 
further.  Lord  Northington,  Lord  Hardwicke,  Lord  Eldon,  Lord 
Eedesdale,  Sir  Edward  Sugden,  as  the  Lord-Chancellor  of  Ire- 
land, Lord  Chief-Justice  Wilmot,  Sir  Joseph  Jekyll,  and  Sir 
John  Leach  have  expressed  the  clear  opinion  that  the  statute 
created  no  new  law  ;  that  it  simply  created  a  new  and  ancillary 
jurisdiction  by  commission  to  issue  out  of  chancery,  to  inquire 
whether  funds  devoted  to  charitable  purposes  had  been  misap- 
plied.^    But  beyond  this  is  the  report  of  the  commissioners 

1  Bligh  (n.  s.),  61 ;  Attorney-General  v.  Piatt,  Finch.  221 ;  1  Ch.  Ca.  267; 
West  V.  Palmer,  1  Ch.  Ca.  134;  Duke,  379;  Collinson's  Case,  Hob.  136; 
Rolt's  Case,  Moore,  888  ;  Mills  v.  Farmer,  1  Mer.  55  ;  Moggridge  v.  Thaek- 
well,  7  Ves.  36. 

^  Baptist  Association  v.  Hart's  Ex'rs,  4  Wheat.  1. 

2  Payne's  Case,  Duke,  154 ;  Guiddy's  Case,  4  Jac.  1 ;  Blackston  v. 
Henworth  Hospital,  Duke,  644;  11  Jac.  1;  Henshaw  y.  Morpeth,  Duke, 
142;  Mayor  of  London's  Case,  Duke,  389;  1  Car.  15;  Attorney-General 
V.  Townsend,  Duke,  590 ;  22  Car.  2 ;  Chelmford's  Case,  Duke,  574. 

3  Attorney-General  v.  Dublin,  1  Bligh  (n.  s.),  312.  347;  Attorney- 
General  V.  Skinners'  Co.  2  Russ.  407,  420;  Attorney-General  v.  Brent- 
wood School,  1  My.  &  K.  376 ;  Incorporated  Soe.  v.  Richards,  1  Conn.  & 
Laws.  58;  1  Dru.  &  AVar.  258;  4  Ir.  Eq.  201;  Carie  v.  Bertie,  2  Vern. 
342;  Eyre  v.  Shaftesbury,  2  P.  Wms.  119;  Attorney-General  v.  Locke,  3 
Atk.  165 ;  Attorney-General  v.  Brereton,  2  Ves.  425 ;  Attorney-General  v. 
Middleton,  2  Ves.  327  ;  Attorney-General  v.  Tancred,  1  Eden,  10 ;  1  W. 
Black.  90 ;  Attorney-General  v.  Downing,  Wilmot's  notes,  24.  For  chari- 
table cases  in  chancery  prior  to  the  statute,  see  Messenger  v.  Gloucester, 


§§  693, 694.]  STATUTE  of  Elizabeth.  297 

of  public  records,  published  in  1827,  1830,  and  1832.  These 
records  contain  about  fifty  cases  before  the  statute,  in  which 
the  Court  of  Chancery  had  exercised  a  jurisdiction  in  establish- 
ing, regulating,  and  enforcing  gifts  and  grants  to  charitable 
uses,  very  similar  to  the  jurisdiction  now  exercised  by  courts 
in  those  States  where  the  statute,  or  the  principles  of  the  stat- 
ute are  in  force. ^  Since  the  publication  of  these  records,  the 
matter  has  been  again  much  discussed  in  the  Supreme  Court 
of  the  United  States,  and  in  other  courts  in  America ;  and  it 
is  now  conceded  as  settled,  tliat  courts  of  equity  have  an  origi- 
nal and  an  inherent  jurisdiction  over  charities,  independent  of 
the  statute.^  The  consequence  of  this  final  determination  is 
important  in  this  respect,  that  courts  of  equity,  in  the  various 
States  where  they  are  not  prohibited  by  statute,  exercise  an 
original,  inherent  jurisdiction  in  equity  over  charities,  and 
apply  to  them  tlie  rules  of  equity,  together  with  such  other 
rules,  applicable  to  charitable  uses,  as  courts  of  equity  may 
exercise  under  the  constitutions  and  laws  of  the  several  States  ; 
and  the  courts  do  this  by  virtue  of  their  inherent  powers,  with- 
out reference  to  the  question  whether  the  statute  has  been 
technically  adopted  in  their  States.^ 

Totliill,  58;  Parrott  v.  Pawk-tt,  Carey,  103;  Elmer  v.  Scott,  Choice  Cas. 
in  Chan.  155;  Duke,  131,  13(J,  103,  361;  Tothill,  120. 

^  For  the  convenience  of  those  who  desire  to  see  these  cases,  we  insert 
the  pages  of  the  "Proceedings  in  Chancery "  where  they  may  be  found: 
Vol.  I.  pp.  Ivi.,  Ivii.,  Ixii.,  81,  96.  98,  101,  134,  141,  159,  213,  216,  218, 
225,  241,  257,  276,  282,  291,  308,  376,  378,  395-399;  Vol.  II.,  pp.  xliv., 
14(5,  271,  303,  430;  Vol.  III.,  pp.  67,  108,  169,  183,  197,  249,  252,  269, 
286,  291,  292,  319.  All  that  is  contained  in  these  cases  is  printed  in  full  in 
Mr.  liinney's  argument  in  the  Girard  case,  pp.  151-160. 

2  Vidal  V.  Girard's  Ex'rs,  2  How.  127;  Tappan  ».  Dehlois,  45  Me.  122; 
Going  V.  Emery,  16  Pick.  107;  Jackson  v.  Phillips,  14  Allen,  558;  Williams 
r.  Williams,  4  Selden,  533;  Attorney-General  v.  Moore,  4  C.  E.  Green, 
503;  Norris  v.  Thompson,  4  C.  E.  Green,  307;  Walker  v.  Walker,  25  Ga. 
420;  Williams  v.  Pearson,  38  Ala.  299;  State  v.  Prewett,  20  Miss.  165; 
Paschall  V.  Acklin,  27  Texas,  173;  Chambers  v.  St.  Louis,  29  Mo.  543; 
Attorney-General  v.  Wallace,  7  B.  Mon.  611;  Franklin  v.  Armfield,  2 
Sneed,  305 ;  Urmry's  Ex'rs  v.  Wooden,  1  Ohio  St.  160 ;  Sweeney  v.  Samp- 
son, 5  Ind.  465;  Gilhnan  v.  Ilainilion,  10  111.  225;  Grimes  v.  Harmon,  35 
Ind.  246.  '  Ibid. 


298  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXriI. 

§  695.  It  was  at  one  time  doubted  whether  the  statute  had 
not  ousted  the  court  of  origuial  jurisdiction,  and  whether  pro- 
ceedings in  relation  to  charities  must  not  in  all  cases  be  com- 
menced by  commission  ;  but  there  were  proceedings  l)y  original 
bill  from  the  beginning/  and  the  doubt  was  soon  overruled  and 
has  disappeared  from  the  books.^ 

§  696.  From  this  discussion,  it  appears  that  the  Statute,  43 
Eliz.  c.  4,  accomplished  three  things  in  the  law  of  charities: 
(1.)  It  established  an  enumeration,  or  kind  of  definition,  stand- 
ard, or  test,  to  which  all  gifts  and  grants  in  trust  could  be 
brought,  in  order  to  determine  whether  they  were  charitable. 
(2.)  It  authorized  a  commission  to  inquire  into  the  abuses  and 
misemployment  of  funds  and  lands  given  to  charity.  But  this 
proceeding  by  commission  soon  fell  into  disuse  ;  and  an  original 
bill,  or  an  information  by  the  attorney-general,  became  the  only 
means  of  redress.  (3.)  It  repealed,  pro  tanto,  all  the  statutes 
of  mortmain  in  force  before  that  time,  so  that  there  was  no 
restriction  in  the  laws  of  England  upon  gifts  or  grants  for  the 
purposes  named  in  the  statute,  until  the  Statute  of  Mortmain, 
9  Geo.  II.  c.  36.3 

§  697.  It  will  be  seen,  that  the  words,  charity  and  a  chari- 
table use,  have  a  somewhat  technical  meaning  in  the  law. 
Mr.  Webster,  in  his  argument  in  the  Girard  case,  attempted 
to  establish  that  a  charity  and  a  charitable  use,  in  the  eye  of 
the  law,  must  involve  the  idea  of  Christianity  in  some  or  all  of 
its  purposes,  or  at  least  must  not  be  opposed  to  the  common 
Christian  faith,  doctrine,  and  practice.*     Mr.  Binney,  in  his 

»  See  Ante,  §  694. 

«  Attorney-General  v.  Newman,  1  Ch.  Ca.  157;  1  Lev.  284;  West  ». 
Knight,  1  Ch.  Ca.  134;  Parish  of  St.  Dunstan  v.  Beauchamp,  1  Ch.  Ca. 
193;  Anon.  1  Ch.  Ca.  267;  Eyre  v.  Shaftesbury,  2  P.  Wins.  119;  Attor- 
ney-General V.  Brereton,  2  Ves.  425,  427. 

3  Magill  V.  Brown,  Brightly,  N.  P.  575 ;  Hobart,  136. 

*  6  Webster's  Works,  133 ;  Bedford  Charity.  2  Swans.  529 ;  1  Vern. 
293;  Dane,  Abr.  Ch.  219;  King  v.  AVilson,  2  Strange,  834;  Taylor's  Case, 


§§  695-697.]  DEFINITION    OF    A    CHARITY.  299 

argument  in  the  same  case,  defined  a  charitable  or  pious  gift  to 
be  "  whatever  is  given  for  the  love  of  God,  or  for  the  love  of 
your  neighbor  iu  the  catholic  and  universal  sense,  —  given 
from  these  motives  and  to  these  ends,  free  from  the  stain  or 
taint  of  every  consideration  tliat  is  personal,  private,  and  self- 
ish." ^  The  word  "  charity,"  in  its  widest  sense,  denotes  all 
the  good  affections  men  ought  to  bear  toward  each  other  ;  in  a 
more  restricted  sense,  it  means  relief  or  alms  to  the  poor  ;  but 
in  a  court  of  chancery  the  signification  of  the  word  is  derived 
from  the  statute  of  Elizabeth.^  Hence  it  has  been  said,  that 
those  purposes  are  considered  charitable  which  are  enumerated 
in  the  statute,  or  which  by  analogy  are  deemed  within  its  spirit 
or  intendment.^  Another  short  but  practical  definition  has 
described  it  as  ''  a  gift  to  a  general  public  use,  which  extends 
to  the  poor  as  well  as  the  rich."  ^  But  Mr.  Justice  Gray  has 
given  a  definition  which  includes  all  the  facts  and  circumstances, 
and  all  varieties  of  charity  under  the  law,  and  leaves  nothing 
to  be  desired.  In  his  words,  "  a  charity  in  a  legal  sense  may 
be  more  fully  defined  as  a  gift  to  be  applied,  consistently  with 
existing  laws,  for  the  benefit  of  an  indefinite  number  of  per- 
sons,—  either  by  bringing  their  hearts  under  the  influence  of 
education  or  religion,  by  relieving  their  bodies  frum  disease, 
suffering,  or  constraint,  by  assisting  them  to  establish  them- 
selves for  life,  or  by  erecting  or  maintaining  public  buildings 
or  works,  or  otherwise  lessening  the  burdens  of  government. 
It  is  immaterial  whether  the  purpose  is  called  charitaljle  in  the 

3  i\Ier.  405 ;  Evans  v.  London,  2  Burns'  Ecc.  L.  95 ;  Attorney-General  v. 
^lansfieUl,  2  Russ.  5Ul ;  Attorney-General  v.  Culluni,  1  Yo.  &  Col.  -Ill; 
Up(Jegraph  v.  Coninionwealtli,  11  S.  &  W.  394;  Zeisweiss  j>.  James,  63 
Penn.  St.  465. 

*  Girard  case,  Mr.  Binney's  argument,  41  ;  Price  v.  Maxwell,  28  Penn. 
St.  35. 

2  Tudor,  Cliar.  Uses.  4  (2d  ed.). 

8  Morice  i'.  Bishop  of  Durham,  9  Ves.  405;   10  Ves.  541. 

*  Jones  V.  Williams,  Anib.  652;  Coggesball  v.  Pelton,  7  John.  Cli.  294; 
Mitford  V.  Reynolds,  1  Phil.  191  ;  Perin  v.  Carey,  24  How.  5UG ;  Miller  v. 
Porter,  63  Penn.  St.  300 ;  Everett  v.  Carr,  59  Me.  335. 


300  TRUSTS    FOR    CHARITABLE    USES,  [CHAP.  XXIII. 

gift  itself,  if  it  is  so  described  as  to  show  tliat  it  is  charitable  in 
its  nature."  ^ 

§  698.  A  bequest  in  trust  for  the  poor  inhabitants  of  a  par- 
ticular place,  parish,  or  town,  is  a  charitable  trust  for  the  poor 
not  receiving  parochial  or  municipal  aid  and  relief  as  paupers : 
on  the  ground  that  the  charity  is  for  the  poor,  and  not  for  the 
rich  ;  and  if  it  was  applied  to  the  maintenance  of  those  sup- 
ported by  the  parish,  town,  or  county,  it  would  relieve  wealthy 
tax-payers  from  their  taxes,  and  not  materially  aid  the  poor.^ 
There  can  be  no  clear  distinction  drawn  in  such  cases;  for  to 
aid  the  poor  may  save  them  from  the  parish  or  town,  and  thus 
relieve  wealthy  tax-payers  from  burdens  that  would  otherwise 
fall  upon  them.  Generally,  the  intention  of  the  donor  will 
guide  in  the  distribution  of  his  bounty,  as  he  may  see  fit  to  add 
some  comforts  to  the  meagre  support  of  town  or  parish,  or  he 
may  confine  his  alms  to  those  not  receiving  public  aid.^  In 
the  absence  of  all  directions,  it  may  be  as  well  to  confine  the 
charity  to  those  not  in  the  public  almshouse,  unless  the  gift  is 
in  aid  of  the  poor-rates.* 

§  699.  Thus  the  following  gifts  for  the  poor  have  been  held 
to  be  charitable  within  the  letter  or  spirit  of  the  statute,  or 
within  the  law  of  charities,  as  administered  in  several  of  the 
States:  a  gift  to  the  poor  indefinitely;^    or  to  a  particular 

^  Jackson  v.  Phillips,  14  Allen,  556. 

'  Attorney-General  v.  Clarke,  Auib.  422;  Rogers  v.  Rogers,  2  Keen,  8  ; 
Attorney-General  v.  Wilkinson,  1  Beav.  373 ;  Attorney-General  v.  Bovill, 
1  Phil.  768 ;  Attorney-General  v.  Exeter,  2  Russ.  53,  359  ;  Attorney-Gen- 
eral V.  Brandreth,  1  Yo.  &  Col.  Ch.  200;  Hereford  v.  Adams,  7  Ves.  324; 
Attorney-General  v.  Price,  3  Atk.  110;  Mclntire  v.  Zanesville,  17  Ohio  St, 
352;  Bruce  v.  Presbytery,  »fec.,  1  H.  L.  Scot.  96;  Fisk  v.  AttV-Gen.  L.  R. 
4  Eq.  521. 

*  Webb  V.  Neal,  5  Allen,  575;  Attorney-General  v.  Blizard,  21  Beav. 
233.  •*  Doe  v.  Howells,  2  B.  &  A.  744. 

'  Att'y-Gen.  v.  Mathews,  2  Lev.  167 ;  Att'y-Gen.  v.  Peacock,  Finch, 
245;  Anib.  422;  Att'y-Gen.  v.  Ranee,  Arab.  422;  Legger,  Asgill,  Turn.  & 
Russ.  265,  n.;  Howard  v.  American  Peace  Soc.  49  Me.  288. 


§§  697-699.]  GIFTS    FOR   THE   POOR.  301 

parish  or  place  ;  ^  or  workhouse  ;  ^  or  hospital ;  ^  or  to  the  poor 
emigrating-  to  a  particular  colony  *  or  place  ;  ^  or  to  a  parish 
generally ;  ^  or  to  the  governors  of  a  hospital  ; "'  or  to  the 
widows  and  orphans  of  a  parish  ;  ^  or  to  the  widows  and  sea- 
men of  a  town  ;  ^  or  for  poor  and  pious  persons  ;  ^^  or  to  such 
poor  housekeepers  as  A.  should  appoint  ;  ^^  or  to  the  indigent 
residents  of  certain  towns,  to  be  selected  by  the  trustees  ;  --  or  to 
distribute  groceries,  clothing,  fuel,  and  alms  among  the  poor  ;  ^^ 
or  for  the  relief  of  the  destitute  in  such  manner  as  charity  is 
usually  distributed  by  the  ministers  at  large  in  the  city  of  Bos- 
ton ;  ^*  or  to  twenty  aged  widows  and  spinsters  of  a  parish. ^^ 
Gifts  for  the  poorer  classes  have  been  sustained  ;  as,  for  letting 

1  AttV-Gen.  V.  Blizard,  21  Beav.  233;  Bristow  v.  Bristow,  o  Beav.  289; 
Att'y-Gen.  v.  Wilkinson,  1  Beav.  370;  Woodford  v.  Parkhurst,  Duke,  70; 
Att'y-Gen.  v.  Clarke,  Arab.  422;  Att'y-Gen.  «.  Old  South  Soc.  13  Allen, 
474;  State  v.  Gerard,  2  Ired.  Eq.  210;  Overseers  v.  Tayloe,  Gilm.  336; 
Shotwell  V.  Mott,  2  Sand.  Ch.  46;  Att'y-Gen.  v.  Bovill,  1  Pliil.  762;  In  re 
Lambeth  Charities,  22  L.  J.  Ch.  'J69  ;  Att'y-Gen.  v.  Trinity  Church,  9 
Allen,  422. 

2  Att'y-Gen.  v.  Vint,  3  De  G.  &  Sm.  704. 

^  Corp.  of  Reading  v.  Lane,  Duke,  81;  Att'y-Gen.  v.  Kell,  2  Beav.  575; 
Helham  v.  Anderson,  2  Eden,  290. 

<  Barclay  v.  Maskelyne,  4  Jur.  (v.  s.)  1294;  John.  Ch.  (Eng.)  124. 

*  Cliainbers  v.  St.  Louis,  29  Mo.  543. 

^  West  V.  Knight,  1  Ch.  Ca.  134;  Champion  i-.  Smith,  Duke,  81  ;  Att'y- 
Gen.  V.  Johnson,  Amb.  190,  n. 

''  Mayor  of  London's  Case,  Duke,  83. 

^  Att'y-Gen.  v.  Comber,  2  Sim.  &  S.  93;  Att'y-Gen.  v.  Glegg,  Amb. 
584,  585,  n.;  1  Atk.  356;  Att'y-Gen.  v.  Speed,  West,  Ch.  491;  Cook  u- 
Duckenfield,  2  Atk.  5G2,  567. 

^  Powell  V.  Att'y-Gen.  3  Mer.  48;  Urmey's  Ex'rs  v.  Wooden,  1  Ohio 
St.  160. 

1"  Nash  V.  Merely,  5  Beav.  177. 

"  Att'y-Gen.  v.  Pearce,  2  Atk.  87;  Barnard.  Ch.  208. 

"*  Shotwell  V.  Mott,  2  Sand.  Ch.  46 ;  Hereford  v.  Adams,  7  Ves.  324 ; 
Paice  V.  Canterbury,  14  Ves.  364;  Waldo  i'.  Caley,  16  Ves.  206;  Com.  of 
Char.  Donations  v.  Sullivan,  1  Dr.  &  War.  501  ;  4  Ir.  E(i.  280. 

13  Washburn  v.  Sewell,  9  Met.  280 ;  Graudom's  Estate,  6  W.  &  S.  537. 

1*  Derby  i;.  Derby,  4  R.  I.  414. 

'6  Thompson  v.  Corby,  27  Beav.  649;  Russell  v.  Kellett,  3  S.n.  &  Gif. 
264. 


302  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

out  land  at  a  low  rent ;  ^  or  for  deserving  literary  men  who 
have  been  unsuccessful.-  F^o  trusts  for  poor  relations  have 
been  considered  charitable,  and  will  be  confined  to  such  poor 
relations  as  are  next  of  kin  under  the  statute  of  distributions ; 
and  poor  relations  becoming  rich,  and  the  representatives  of 
poor  relations,  will  be  excluded :  ^  but  where  the  trust  is  of  a 
perpetual  cbaracter,  it  will  extend  to  all  the  poor  relations  of 
the  donor,  and  will  not  be  confined  to  those  within  the  statute 
of  distributions.*  Trusts  for  releasing  poor  debtors,  and  for 
the  relief  of  decayed  tradesmen  are  charitable.^  So  of  a  be- 
quest for  ten  worthy  men  for  tbe  purchase  of  meat  and  wine  fit 
for  the  service  of  two  nights  of  the  passover  ;  ^  or  for  poor 
members  of  the  Friends'  Society,  and  for  the  relief  of  Indians.^ 
So  a  bequest  in  aid  of  objects  or  purposes  of  charity,  public  or 
private,  was  held  to  be  for  the  general  relief  of  the  poor.^  A 
gift  "  in  aid  of  the  poor-rates,"  ^  or  to  support  schools  and  the 
poor  of  a  county,  is  charitable.^^ 

§  700.  Education  and  schools  of  learning  of  all  grades  are 
referred  to  in  the  statute,  and  almost  all  gifts  for  educational 
purposes  are  held  to  be  charitable  ; "  as,  gifts  for  the  advance- 

'  Grafton  v.  Frith.  15  Jur.  737;  2  L.  J.  (n.  s.)Ch.  198. 

2  Thompson  v.  Thompson,  1  Coll.  Ch.  395 ;  Shotwell  v.  Mott,  2  Sand. 
Ch.  46. 

'  Brunsden  v.  Woolredge,  Amb.  507 ;  Green  v.  Howard,  1  Bro.  Ch. 
31,  n. ;  Harding  v.  Glyn,  1  Atk.  169;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill; 
Swasey  v.  Amer.  Bible  Soc.  57  Me.  527 ;  Smith  v.  Harrington,  4  Allen,  566. 

"  White  V.  White,  7  Ves.  423;  Isaac  v.  De  Friez,  17  Ves.  373  n.;  Amb. 
595;  AttV-Gen.  v.  Bucknall,  2  Atk.  328;  Att'y-Gen.  y.  Price,  17  Ves.  371; 
Tudor,  Char.  7. 

*  Att'y-Gen.  r.  Ironmongers'  Co.  2  Ikly.  &  K.  576 ;  10  CI.  &  Fin.  908  ; 
Att'y-Gen.  v.  Painters'  Co.  2  Cox,  51. 

^  Straus  V.  Goldjimid,  8  Sim.  614. 

">  Magill  V.  Brown,  Brightly,  347. 

*  Saltonstall  v.  Sanders,  11  Allen,  446. 
»  Doe  V.  Howeils,  2  B.  &  A.  744. 

'"  Heuser  v.  Harris,  42  111.  425. 

"  Jackson  v.  Phillips,  14  Allen,  552;  Swasey  r.  Amer.  Bible  Soc.  57  Me. 
527  ;  Tainter  v.  Clark,  5  Allen,  66. 


§§  699,  TOO.]       GIFTS    FOR   EDUCATIONAL   PURPOSES.  303 

ment  of  learning  in  every  part  of  the  world,  so  far  as  circum- 
stances will  permit ;  ^  or  for  the  diffusion  (a  part  in  Pennsylvania, 
the  residue  in  the  United  States)  of  useful  knowledge  and  instruc- 
tion among  the  institutes,  cluljs,  or  meetings  of  the  worlcing- 
classes,  or  manual  laborers  by  the  sweat  of  their  brow;^  to 
build  or  erect  a  school  or  free  grammar-school,^  or  a  school  for 
the  sons  of  gentlemen;*  or  to  maintain  a  school-master;^  or 
for  the  masters  and  fellows  of  a  college  ;^  or  for  the  founda- 
tion of  a  scholarship,"  fellowship,*  or  lectureships  in  a  college 
or  university ;  ^^  or  for  the  perpetual  endowment  of  two  schools ;  ^^ 
or  to  establish  a  college  for  orphans,  altliougli  all  ministers  are 
for  ever  excluded  from  its  walls  ;  ^^  or  for  the  education  of  young 
men  at  Oxford  for  the  Church  of  England  to  be  selected  ;  ^^  or 
to  maintain  a  library  and  reading-room  ;  ^*  or  for  paying  pre- 
miums for  the  most  important  discoveries,  or  useful  improve- 
ments made  public  upon  light  and  heat ;  ^^  or  for  the  civilization 

»  Whicher  v.  Hume,  1  De  G.,  M.  &  G.  506;  7  H.  L.  Ca.  12  i;  10  Eng. 
L.  &Eq.  73;  U  Beav.  509. 

*  Sweeney  v.  Sampson,  5  Ind.  405. 

'  Hadley  v.  Hopkins  Acad.  14  Pick.  241  ;  State  r.  McGowen,  2  Ired. 
Eq.  9  ;  Rugby  School,  Duke,  80;  Gibbons  v.  RIaltyard,  Popli.  6  ;  Att'y- 
Gen.  V.  Williams, 4  Bro.  Ch.  525;  Att'y-Gen.  v.  Bowles,  2  Ves.  547;  Wright 
V.  Lynn,  9  Barr,  433;  Grtflin  v.  Graham,  1  Hawks,  96. 

*  Att'y-Gen.  v.  Lonsdale,  1  Sim.  109. 

*  Hynshaw  v.  Morpeth,  Duke,  69. 

«  Piatt  r.  St.  John's  Coll.  Duke,  77. 

'  Rex  V.  Newman,  1  Lev.  244;  Att'y-Gen.  v.  Andrew,  3  Ves.  633. 

^  Case  of  Jesus'  Coll.  Duke,  78;  Att'y-Gen.  v.  Bowyer,  3  Ves.  714. 

*  Att'y-Gen.  v.  Margaret  and  Regius  Professors  in  Cambridge,  1  Vera. 
55. 

'°  Porter's  Case,  1  Rep.  25,  b. ;  Att'y-Gen.  v.  Wharwood,  1  Ves.  537; 
Chri.st's  Coll.,  Cambridge,  1  E.len,  10;  Amb.  351;   1  Black.  90. 

11  Kirkbank  v.  Hudson,  7  Price,  213;  Att'y-Gen.  v.  Williams,  4  Bro.  Ch. 
526. 

1'^  Vidal  V.  Girard's  Ex'rs,  2  How.  127;  Miller  v.  Atkinson,  63  N.  C. 
637. 

"  In  re  Well  Beloved  Weeks,  7  Eng.  L.  &  Eq.  73. 

'*  Drury  v.  Xatick,  10  Allen,  169;  Jackson  v.  Phillips,  14  Allen,  552; 
Pickering  v.  Shotwell,  10  Barr,  23. 

'^  American  Acad.  v.  Harvard  Coll.  12  Gray,  584. 


304  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

of  Indians  ;  ^  or  to  assist  literary  persons  in  their  pursuits,  or  to 
publish  an  essay  on  science ;  ^  or  to  publish  and  distribute  the 
works  of  Joanna  Southcote  ;  ^  or  to  promote  the  moral,  intel- 
lectual, and  physical  instruction  and  education  of  a  city  ;  *  or  to 
create  a  "  change  of  sentiment,"  which  means  to  educate  ;  ^  or 
a  fund  to  increase  the  salaries  of  teachers.^  Money  in  trust 
to  support  a  school  for  the  use  of  poor  children,  cannot  be 
applied  to  a  public  school  where  rich  and  poor  are  educated 
together ;  but  it  may  be  used  in  purchasing  food  and  clothing 
and  books  for  poor  children,  to  enable  them  to  attend  such 
school.' 

§  701.  The  only  reference  that  the  statute  makes  to  religious 
uses  as  charitable  is  to  the  "  repair  of  churches."  Sir  Francis 
Moore  says  that  the  omission  was  intentional,  in  order  to  avoid 
contiscations  in  case  the  Reformation  went  backwards.  But, 
in  a  Christian  community  of  whatever  variety  of  faith  and  form 
of  worship,  there  would  be  little  need  of  a  statute  to  declare 
gifts  for  religious  uses  to  be  charitable.  Therefore,  both  before 
and  since  the  statute,  gifts  for  the  advancement,  spread,  and 
teaching  of  Christianity,  or  for  the  convenience  and  support  of 
worship,  or  of  the   ministry,  have   been   held  charitable  ;  ^  as 

*  Magill  V.  Brown,  Brightly,  347. 

« Thompson  v.  Thompson,  1  Coll.  N.  C.  C.  395. 
'  Tliornton  v.  Howe,  31  Beav.  14. 

*  Lowell's  App.  22  Pick.  215;  Pickering  v.  Shotwell,  10  Barr,  27; 
Whicher  v.  Hume,  7  H.  L.  Ca.  124;  Marsh  v.  Means,  3  Jur.  (x.  s.)  7UU ; 
Hartshorne  v.  Nicholson,  4  Jur.  (x.  s.)  8G4;  Barclay  v.  Maskelyne,  4  Jur. 
(x.  s.)  1294;  see  Briggs  v.  Hartle\',  14  Jur.  683. 

"  Jackson  v.  Phillips,  14  Allen,  552. 
«  Price  V.  Maxwell,  28  Penn.  St.  23. 
'  Mclntire  v.  Zanesville,  17  Ohio  St.  352. 

*  Anon.  Antler.  43,  pi.  108  ;  Pitt  f.  James,  Hob.  123;  Cheney's  Case, 
Coke  Lit.  342;  1  Cox,  316;  Gibbons  t\  Malty anl,  Poph.  6;  Moore,  594 ; 
Porter's  Case,  1  Rep.  26  a,  n.  ;  Bruerton's  Case,  6  Rep.  1  b,  2  a.  ;  Barrey 
V.  Ley,  Dwight's  Char.  Ca.  92;  Att'y-Gen.  v.  Downing,  Wilmot,  15;  Bridg- 
mnn's  Duke,  125,  154;  Magill  v.  Brown,  Brightly,  380,  381;  Jackson  v. 
Phillips,  14  Allen,  552,  553;  Baker  u.  Dutton,  Keen,  224,  232;  Att'y-Gen. 
V.  Jolly,  1  Rich.  99. 


§§  700,  701.]       GIFTS   FOR  RELIGIOUS   PURPOSES.  305 

gifts  for  the  good,^  or  reparation,  furniture,  or  ornament  of  a 
parish  church  ;  ^  or  to  a  minister  for  preaching  ;  ^  or  for  a  pen- 
sion to  a  perpetual  curate  ;  *  or  for  unbeneficed  curates ;  ^  or 
for  augmentations  of  ecclesiastical  persons  to  small  vicarages 
and  curacies ;  ^  or  to  Queen  Anne's  bounty ;  '^  or  for  tlic  ad- 
vancement of  Christianity  among  infidels ;  ^  for  foreign  mis- 
sions ;  ^  for  the  dissemination  of  the  gospel  at  home  and 
abroad  ;  ^^  "  for  the  service  of  my  Lord  and  Master  ;  "  ^^  "  to  be 
disposed  of  for  the  benefit  or  advancement  of  such  societies, 
subscriptions,  or  purposes  having  regard  to  the  glory  of  God  in 
the  spiritual  welfare  of  his  creatures,  as  they  in  their  discretion 
shall  see  fit ; "  ^^  or  for  keeping  the  chimes  of  a  church  in 
repair ;  ^-^  or  for  payment  of  the  singers  ;  ^^  or  for  keeping  up  an 
organ  and  paying  the  organist ;  ^^  or  for  distributing  Bibles  and 

1  AVingfield's  Case,  Duke,  80 ;  Anon.  Carey,  39  ;  Nash's  Charity,  Dwight's 
Char.  Ca.  114. 

2  I?i  re  Church  of  Donington-on-Baine,  6  Jur.  (x.  s.)  290;  Att'y-Gen. 
V.  Vivian,  1  Russ.  226 ;  AttyGen.  v.  Ruper,  2  P.  Wms.  125 ;  Magill  v. 
Brown,  Brightly,  347. 

'  Gibbons  v.  Maltyard,  Poph.  6  ;  Pember  v.  Inh.  of  Knighton,  Duke,  82 ; 
Poph.  139;  Penstred  v.  Payer,  Duke,  82;  1  Eq.  Ca.  95;  Duke,  131, 
132. 

4  Att>Gen.  v.  Parker,  1  Ves.  43;  14  Ves.  7. 

^  Peiuiington  v.  Buckley,  6  Hare,  453. 

®  Att'y-Gen.  v.  Brercton,  2  Ves.  426. . 

'  Widtnore  v.  Woodroffe,  Amb.  636 ;  1  Bro.  Ch.  13,  n. ;  Middleton  v. 
Clithrow,  3  Ves..  734. 

3  Att>Gen.  V.  London,  1  Ves.  Jr.  243;  3  Bro.  Ch.  171. 

'  Bartlett  v.  King,  12  Mass.  537 ;  Soc.  for  Propagating  the  Gospel  v. 
AttV-Gen.  3  Russ.  142 ;  Fairbanks  v.  Lamson,  99  Mass.  533.  See  Bridges 
V.  Pleasants,  4  Ired.  Eq.  26. 

'"  Att'y-Gen.  v.  Wallace,  7  B.  Mon.  611 ;  Burr  v.  Smith,  7  Vt.  241 ; 
Wrdniore  v.  Woodi-olTe,  Amb.  636 ;  Middleton  v.  Spicer,  1  Bro.  Ch. 
201. 

^^  Going  V.  Emery,  16  Pick.  107  ;  Powerscourt  r.  Powerscourt,  1  Moll. 
616. 

'-  Townsend  v.  Carus,  3  Hare,  267;  Helan  v.  Russell,  4  Ir.  Eq.  701. 

'^  Turner  v.  Ogden,  1  Co.x,  316. 

1^  Ibid. 

'^  Att'y-Gen.  v.  Oakaver,  1  Ves.  535. 

VOL.  II.  20 


306  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

religious  books  and  tracts  ;  ^  or  for  a  Sunday-school  library  ;  ^ 
or  for  the  use  of  Catholic  priests  in  or  near  London ;  ^  or  to 
promote  the  knowledge  of  the  Catholic  religion  among  the  poor 
and  ignorant  inhabitants  of  S.  ;  *  or  for  establishing  a  bishopric 
in  America  ;°  or  "to  a  theological  seminary  for  a  permanent 
fund  to  be  applied  to  the  education  of  pious  and  indigent  youth 
for  the  ministry,  who  adhere  to  the  Westminster  Confession  of 
Faith  ;  "  ^  or  for  preaching  a  sermon  on  Ascension  Day  ; "  or  to 
a  church,  to  be  laid  out  in  bread  for  the  poor;^  or  for  the 
benefit  of  ministers  of  the  gospel.^ 

§  702.  It  is  to  be  observed,  that  gifts  to  teach  or  propagate 
any  faith  or  practice  contrary  to  the  established  church  of  the 
kingdom,  was  for  a  long  time  illegal ;  and  such  gifts  could  not 
be  sustained,  as  charities,  for  the  purposes  for  which  they 
were  given.^*^  Even  now,  gifts  to  aid  in  re-establishing  the 
supremacy  of  the  pope  are  contrary  to  public  policy  and 
void  ;  ^1  but  gifts  to  dissenting  societies,  though  their  teaching 

^  Att'y-Gen.  v.  Stepney,  10  Ves.  22;  Winslow  v.  Cummings,  3  Cush. 
358;  Bliss  v.  American  Bible  Society,  2  Allen,  33i;  Pickerings.  Shotwell, 
10  Barr,  32.  '^  Fairbanks  v.  Lamson,  99  Mass.  553. 

3  Att'y-Gen.  v.  Gladstone,  13  Sim.  7. 

4  West  V.  Shuttleworth,  2  My.  &  K.  684. 

^  Att'y-Gen.  v.  Bishop  of  Chester,  1  Bro.  Ch.  444;  Habershon  v.  Yardon, 
7  Eng.  L.  &  Eq.  228 ;  4  De  G.  &  Sm.  467. 

«  McCord  V.  O'Chiltree,  8  Blackf.  15;  Att'y-Gen.  v.  Lawes,  8  Hare,  32. 

'  Turner  v.  Ogden,  1  Cox,  316;  Durour  v.  Motteux,  1  Ves.  320. 

«  Whitman  v.  Lex,  17  S.  &  R.  88. 

9  Att'y-Gen.  v.  Gladstone,  13  Sim.  7;  Thornber  v.  Wilson,  3  Drew.  245; 
4  Drew.  350;  Att'y-Gen.  v.  Hickman,  2  Eq.  Ca.  Ab.  193;  Att'y-Gen.  v. 
Cock,  2  Yes.  273;  Att'y-Gen.  v.  Lawes,  8  Hare,  32;  Grieves  v.  Case,  4 
Bro.  Ch.  67 ;  Weller  v.  Child,  Arab.  524 ;  Bishop  Gore's  Charity,  4  Dru. 
&  War.  270. 

^°  De  Themmines  v.  De  Bonneval,  5  Russ.  288;  Da  Costa  v.  De  Pas, 
Amb.  228;  1  Dick.  258;  Att'y-Gen.  r.  Baxter,  1  Vern.  248;  2  Yern.  105; 
1  Eq.  Ca.  Ab.  96,  pi.  9 ;  Doe  v.  Hawthorn,  2  B.  &  Aid.  96 ;  West  v.  Shut- 
tleworth, 2  My.  &  K.  684 ;  Briggs  v.  Hartly,  14  Jur.  683 ;  In  re  Blundell, 
30  Beav.  360. 

^^  De  Themmines  v.  De  Bonneval,  5  Russ.  288. 


§§  701-704.]       GIFTS    FOR   PUBLIC    CONVENIENCE.  307 

is  contrary  to  that  of  the  established  church,  are  now  carried 
into  effect  as  charitable.^  At  all  times,  gifts  for  the  relief, 
comfort,  and  education  of  dissenters,^  or  Catholics,^  or  Jews,"* 
not  connected  with  the  propagation  of  their  faith,  were  con- 
sidered charitable.^ 

§  703.  It  is  further  to  be  remarked,  that  a  gift  to  a  priest 
or  minister  in  his  public  office,  to  be  used  by  him  for  such 
public,  religious,  and  charitable  purposes  as  he  sees  fit,  will 
be  held  to  be  charitable :  but  it  must  be  a  gift  to  the  donee  in 
his  official  capacity,  to  be  expended  for  public  charitable  pur- 
poses ;  for  if  it  is  a  gift  to  the  person,  or  individual  in  his  pri- 
vate capacity,  for  his  individual  benefit  and  relief,  it  will  not 
be  charitable,  though  the  individual  is  described  by  his  official 
character.^ 

§  704.  The  statute  names  the  repair  of  bridges,  ports,  ha- 
vens, causeways,  sea-banks,  and  highways  as  charitable,  and 
also  the  aid  and  ease  of  poor  people  in  the  payment  of  taxes ; 
consequently,  gifts  for  the  general  comfort,  ease,  and  conven- 
ience of  the  people,  rich  as  well  as  poor,  are  holden  to  be 
charitable  ;  as  to  establish  a  bridge  or  lifeboat  for  a  town ; " 

'  AttV-Gen.  v.  Pearson,  3  Mer.  353;  Att'y-Gen.  v.  Hickman,  2  Eq.  Ca. 
Ab.  193;  Shrewsbury  v.  Ilornbury,  5  Hare,  406;  Att'y-Gen.  v.  Lawes,  8 
Hare,  32;  Att'y-Gen.  v.  Cock,  2  Ves.  273;  Att'y-Gen.  v.  Hickman,  2  Eq. 
Ca.  Ab.  193. 

2  Att'y-Gen.  v.  Baxter,  1  Vern.  248;  2  Vern.  105;  1  Eq.  Ca.  Ab.  96; 
Att"v-Gen.  v.  Lawes,  8  Hare,  32;  Weller  v.  Childs,  Amb.  524;  Bishop 
Gore's  Charity,  4  Dru.  &  War.  270;  Wellbeloved  v.  Jones,  1  Sim.  &  St. 
40. 

'  West  v.  Shuttleworth,  5  My.  &  K.  684;  Att'y-Gen.  v.  Gladstone,  13 
Sim.  7. 

*  Straus  V.  Goldsmid,  8  Sim.  614.  *  Ibid. 

«  Thornton  v.  Wilson,  3  Drew.  245 ;  4  Drew.  350,  357  ;  Doc  v.  Aldridge, 
4  T.  R.  264;  Doe  v.  Copestake,  6  East,  328;  Morice  v.  Durham,  9  Vos. 
399  ;  10  Ves.  522. 

'  Johnston  v.  Swan,  3  Mad.  437 ;  Forbes  v.  Forbes,  23  Eng.  L.  &  Eq. 
335;  Hampden  v.  Rice,  24  Conn.  350. 


308  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

or  "  for  purposes  conducing  to  the  good  of  the  county  of  W., 
and  the  parish  of  L.  especially  ; "  ^  for  supplying  water  to  the 
town  of  C.  for  the  use  of  the  inhabitants  ;  ^  for  the  improve- 
ment of  the  town  of  Bolton,^  and  of  Bath;*  for  charitable, 
beneficial,  and  public  works  at  Decca,  in  Bengal ;  ^  for  the 
reduction  of  the  national  debt ;  ^  for  erecting  a  town-house  ; " 
for  planting  and  renewing  shade  trees  in  situations  now  ex- 
posed to  the  heat  of  the  sun  ;  ^  for  the  advantage  and  benefit 
of  Great  Britain  ;  ^  for  such  purposes  as  tlie  trustees  may  judge 
most  for  the  benefit  and  ornament  of  the  town.i*^  Gifts  to 
maintain  a  preaching  minister,  to  build  a  sessions  house  ;  to 
rebuild  St.  Paul's  Church  ;  or  to  pave,  light,  cleanse,  and  im- 
prove a  town,  —  are  charitable  ;  ^^  so  are  gifts  to  discharge  a 
tax  on  the  commonalty ;  ^^  or  for  a  botanical  garden  for  the 
public  benefit ;  ^^  or  for  an  institution  for  studying  and  curing 
the  diseases  of  beasts  and  birds  useful  to  man  ;  ^*  or  to  the 
British  Museum  for  the  collection  and  preservation  of  objects 
of  science  or  art  for  the  public  improvement ;  ^^  or  to  promote 
the  public  good  by  the  encouragement  of  science  and  the  use- 

^  Atfy-Gen.  v.  Lonsdale,  1  Sim.  105. 
2  Jones  V.  Williams,  Amb.  651. 
'  Att>--Gen.  v.  Heelis,  2  Sim.  &  St.  67. 
*  Howse  V.  Chapman,  4  Ves.  542. 
=  Mitford  V.  Reynolds,  1  Phil.  185. 

^  Ashton  V.  Langdale,  4  Eng.  L.  &  Eq,  139;  Newland  v.  Att'y-Gen.  3 
Mer.  684 ;  British  JNIuseum  v.  White,  2  Sim.  &  St.  596. 
^  Coggshall  V.  Pelton,  7  John.  Ch.  292. 
6  Cresson's  App.  30  Penn.  St.  437. 
^  Nightingale  v.  Goulbourn,  5  Hare,  484;  2  Phil.  594. 
1°  Feversham  v.  Ryder,  27  Eng.  L.  &  Eq.  369. 

11  Atfy-Gen.  t'.  Heelis,  2  S.  &  S.  67,  77 ;  Howse  v.  Chapman,  4  Ves. 
542;  Duke,  109,  136;  Eltham  Parish  v.  Warreyn,  Duke,  67;  Collinson's 
Case,  Hob.  136. 

12  Att'y-Gen.  j;.  Bushby,  24  Beav.  290. 

13  Towuley  v.  Bidwell,  6  Ves.  194. 

1*  University  of  London  v.  Yarrow,  28  Beav.  159;   1  De  G.  &  Jo.  72. 
15  British  Museum  v.  AVhite,  2  S.  »fe  S.  594;  Beaumont  v.  Oliveira,  L.  R. 
6  Eq.  534;  L.  R.  4  Ch.  App.  309. 


§§  704,  705.]       GIFTS  FOR  INDEFINITE  PUBLIC  PURPOSES.  309 

fill  arts ;  ^  or  to  purchase  a  fire-engine  for  a  town  ;  ^  or  hose 
for  a  hose  company  ;  ^  or  a  gift  to  the  Royal  Geographical 
Society,  or  the  Royal  Humane  Society  ;  '*  or  a  grant  of  land 
for  a  pest-house  for  plague  patients,  though  the  plague  had 
not  appeared  in  England  for  one  hundred  and  eighty  years.^ 

§  705.  There  are  other  and  still  more  indefinite  gifts,  which 
have  been  held  to  be  charitable  within  the  letter  and  spirit  of 
the  statute  :  as  gifts  to  benevolent  and  charitable  purposes 
with  a  recommendation  to  apply  them  to  domestic  servants  ;  ^ 
or  "  if  there  is  any  money  left  I  desire  it  to  be  given  in  char- 
ity ; "  '  or  "  to  such  charitable  purposes  as  I  shall  name  here- 
after "  (and  none  are  named)  ;  ^  or  to  public  and  private 
charities ;  ^  or  to  dispose  of  the  same  in  such  charitable  and 
benevolent  purposes  as  one  of  the  trustees  shall  direct ;  ^"^  or 
to  be  applied  in  aid  of  institutions  for  charitable  and  benevo- 
lent purposes,  established  or  to  be  established  in  Edinburgh 
or  vicinity  ;  ^^  or  to  be  distributed  in  charity,  either  to  private 
individuals  or  public  institutions  ;  ^^  or  for  promoting  charitable 
purposes  as  well  of  a  public  as  a  private  nature  ;  ^^  or  to  such 

1  Gort  V.  AttV-Gen.  G  Dow.  136;  Att'y-Gen.  r.  Andrews,  3  Ves.  633; 
American  Academy  v.  Harvard  Coll.  12  Gray,  694. 

*  Magill  V.  Brown,  Brightly,  411. 

^  Thomas  v.  Ellmaker,  1  Parsons,  Eq.  98. 

*  Beaumont  v.  Oliveira,  L.  R.  6  Eq.  534;  L.  R.  4  Ch.  App.  309. 

»  AttV-Gen.  v.  Craven,  21  Beav.  392;  Carne  v.  Long,  4  Jur.  (x.  s.) 
474;  6  Jur.  (n.  s.)  639;  2  De  G.,  F.  &  Jo.  75. 

«  Miller  V.  Rowan,  5  CI.  &  Fin.  99. 

'  Legge  V.  Asgill,  Turn.  &  Russ.  265,  n. 

®  Mills  V.  Farmer,  19  Ves.  482;  1  ]\Ier.  55.  Where  the  income  was  to 
be  applied  according  to  a  statement  appended,  and  there  was  no  such  state- 
ment, the  court  could  not  presume  that  the  intent  was  charitable.  Aston  v. 
Wood,  L.  R.  6  Eq.  419. 

*  Johnson  v.  Swan,  3  Mad.  437. 
'°  Jeumiit  V.  Verrel,  Amb.  585,  n. 

"  Hill  V.  Burns,  2  Wil.  &  Shaw,  80. 
"  Horde  V.  Suffolk,  2  My.  &  K.  59. 
'3  Waldo  V.  Caley,  16  Ves.  206. 


310  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

charitable  purposes  as  V.  shall  appoint,  V.  dying  in  the  tes- 
tator's lifetime  ;  ^  or  "  to  the  furtherance  and  promotion  of  the 
cause  of  piety  and  good  morals ;  in  aid  of  objects  and  pur- 
poses of  benevolence  or  charity,  public  or  private  ;  to  tem- 
perance, and  for  the  education  of  deserving  youth ; "  ^  or  to 
religious  and  charitable  institutions  and  purposes  ;  '^  or  to 
such  charities  as  the  executor  shall  deem  most  useful.'^  Gifts 
to  be  appropriated  to  the  benefit  of  the  Friends'  Meeting  are 
charitable  ;  ^  or  for  the  use  of  a  lodge  of  Freemasons ;  ^  or 
to  the  American  Peace  Society,  to  be  expended  in  the  cause 
of  peace  ;  '^  or  for  the  assistance  of  respectable  Unitarian  con- 
gregations ;  ^  or  for  the  Universalist  denomination  ;  ^  or  "  for 
the  preparation  and  circulation  of  books,  newspapers,  the 
delivery  of  speeches  and  lectures,  and  such  other  means  as 
in  the  judgment  of  the  trustees  will  create  a  public  sentiment 
that  will  put  an  end  to  slavery  in  the  United  States  ;  ^^  or  to 
assist  fugitive  slaves  escaping  from  the  slave-holding  States  ;"  ^^ 
or  to  such  charities  and  other  public  purposes  as  lawfully 
might  be  in  the  parish  of  T.  ;  ^-  or  for  the  increase  and  en- 
couragement of  good  servants  ;  ^^  or  for  the  maintenance  of  a 
Shaker  community, ^^ 

^  Moggridge  v.  Thackwell,  7  Ves.  39. 

2  Saltonstall  v.  Sanders,   11  Allen,  454;   Dolan  v.  Macdermot,  L.  R.  6 
Eq.  60 ;  Treat's  App.  30  Conn.  113. 
^  Baker  v.  Sutton,  1  Keen,  224. 

*  Wells  V.  Doane,  3  Gray,  201. 

°  Earle  v.  Wood,  8  Cush.  437 ;  Dexter  v.  Gardner,  7  Allen,  245. 

®  King  V.  Parker,  9  Cush.  71;  Vanden  Volgen  v.  Yates,  3  Barb.  242; 
Duke  V.  Fuller,  9  IST.  H.  536;  Everett  v.  Carr,  59  Me.  332;  Indianapolis  v. 
Grand  Master,  25  Ind.  518.     See  Babb  v.  Reed,  5  Rawle,  151. 

''  Tappan  v.  Deblois,  45  Me.  122. 

*  Shrewsbury  v.  Hornbury,  5  Hare,  406. 

8  North  Adams  Univ.  Soc.  v.  Fitch,  8  Gray,  421. 
1°  Jackson  v.  Phillips,  14  Allen,  558.  "  Ibid. 

'^  Dolan  V.  Macdermot,  L.  R.  5  Eq.  60. 

13  Loscombe  v.   Wintringham,   13   Beav.   87;    7  Eng.   L.   &  Eq.    164; 
Reeve  v.  Attorney-General,  3  Hare,  191. 
"  Gass  V.  Wilhite,  2  Dana,  170. 


§§  705-707.]       GIFTS  FOR  INDEFINITE  PUBLIC  PURPOSES.  311 

§  706.  It  has  been  held,  quite  decidedly,  that  a  trust  to  build 
a  monument,  tomb,  or  vault  for  the  donor  is  not  a  charitable 
use  ;  ^  in  other  cases,  it  has  been  held  doubtful  whetlier  such 
trusts  are  charitable ;  ^  but  it  is  now  settled  that  a  trust  to 
build,  maintain,  and  keep  in  repair  tombs,  vaults,  and  burying- 
grounds  of  the  donors,  their  families  or  parishes,  are  so  far 
charitable  that  they  will  be  carried  into  effect.^  A  bequest  of 
an  annual  sum  for  repairs  upon  a  monument  has  been  held 
good.*  Such  bequests  will  always  be  enforced  as  against  the 
heir.° 

§  707.  In  all  these  cases,  it  is  immaterial  from  what  source 
the  funds  that  constitute  the  trust  are  derived,  whether  from 
the  bounty  of  individuals,  the  crown,  the  State,  or  legislature. 
If  a  trust  is  contemplated  and  endowed  with  funds  from  any 
source,  for  a  general  puljlic  purpose,  it  will  be  regulated  and 
controlled  by  a  court  of  equity,  upon  proceedings  instituted 
before  it.^  But  if  the  legislature,  by  general  or  special  laws, 
establishes  schools,  hospitals,  roads,  harbors,  and  other  public 
improvements,  and  appropriates  the  money  therefor,  and  directs 
by  a  public  law  how  such  money  shall  be  raised  and  expended, 
such  works  are  not  charities  within  the  meaning  of  the  law, 
and  courts  of  equity  have  no  jurisdiction  to  regulate  and  con- 
trol them.'' 

'  Mellick  V.  Asylum,  Jacob.  180 ;  Doe  v.  Pitcher,  6  Taunt.  359 ;  Hoare 
V.  Osborne,  L.  R.  1  Eq.  58.5;  Fisk  v.  Att>Gen.  L.  R.  -i  Eq.  521. 

*  Matthews  v.  Masters,  1  P.  Wms.  422,  423,   n.;  Durour  r.   Motteux, 

1  Ves.  320;  Willis  v.  Brown,  2  Jur.  987  ;  Mitford  v.  Reynolds,  1  Phil.  185, 
198;  Adams  v.  Cole,  6  Beav.  353 ;  Doe  v.  Pitcher,  3  M.  &  S.  410. 

8  Lloyd  V.  Lloyd,  10  Eng.  L.  &  Eq.  139 ;  2   Sim.  (n.  s.)  255 ;  Dexter 
V.  Gardner,  7  Allen,  247 ;  Swasey  v.  American  Bible  Soc.  57  Me.  527. 
,  *  Willis  V.  Brown,  2  Jur.  987. 

*  Gravenor  v.  Hallum,  Amb.  643. 

®  Thomas  v.  EUmaker,  1  Par.  Eq.  Ca.  98;  Att'y-Gen.  v.  Shrewsbury, 
6  Beav.  220;  Att'y-Gen.  v.  Eastlake,  11  Hare,  205;  Att'y-Gen.  v.  Heelis, 

2  S.  &  S.  76 ;  Att'y-Gen.  v.  Brown,  1  Swans.  297 ;  Hullman  v.  Honcomp, 
6  Ohio  St.  237. 

-'  Att'y-Gen.  v.  Heelis.  2  S.  &  S.  77. 


312  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

§  708.  The  cases,  thus  far  enumerated  as  good  charitable 
uses,  serve  to  indicate  what  trusts  come  within  the  letter  or 
equity  of  the  statute.  It  does  not  follow,  however,  that  Ameri- 
can courts  can  enforce  all  bequests  which  may  be  called  chari- 
ties. The  purpose  of  the  gift  may  be  charitable  beyond  a 
question  ;  but  the  court,  in  the  ordinary  exercise  of  its  judicial 
powers,  may  be  unable  to  establish  and  administer  it.  For 
example,  if  a  testator  bequeaths  a  sum  of  money  in  trust  for 
such  charitable  purpose  as  he  shall  name  thereafter,  and  dies 
without  naming  the  purpose,^  it  is  plain  that  the  testator  had  a 
charitable  intent ;  but  to  establish  and  administer  such  a  charity 
requires  a  power  and  jurisdiction  that  American  courts  do  not 
possess  ;  to  wit,  the  power  of  completing  the  testator's  will, 
and  of  naming  the  purposes  to  which  the  bequest  shall  be 
applied.  This  is  a  prerogative  power  which  belongs  to  the 
sovereign  power  in  the  State,  and  courts  of  equity  do  not  pos- 
sess it,  unless  it. is  conferred  upon  them  by  statute.  The  same 
remarks  apply  to  many  of  the  cases  hereafter  enumerated, 
which  were  disallowed  and  set  aside  as  charitable  trusts.  Many 
of  the  gifts  were  charitable  within  all  the  principles  of  the  stat- 
ute ;  but  there  was  some  indefiniteness  in  the  application  of  the 
fund  to  the  objects  named,  which  the  courts  decided  they  had 
not  the  rightful  power  to  control. 

§  709.  Before  proceeding  to  notice  and  enumerate  the  cases 
in  which  trusts  have  been  held  not  to  be  charitable  within  the 
letter  and  equity  of  the  statute,  or  which  for  other  reasons 
have  been  set  aside  and  disallowed,  it  is  proper  again  to 
observe  that  courts  look  with  favor  upon  all  such  donations, 
and  endeavor  to  carry  them  into  effect,  if  it  can  be  done  con- 
sistently with  the  rules  of  law.  If  the  words  of  a  gift  are 
ambiguous  or  contradictory,  they  are  so  construed  as  to  support 
the  charity  if  possible.  It  is  an  established  maxim  of  inter- 
pretation, that  the  court  is  bound  to  carry  the  gift  into  effect, 

»  Mills  V.  Farmer,  19  Ves.  482 ;  1  Mer.  55. 


§§  708,  709.]       CONSTRUCTION    OF    CHARITABLE   GIFTS.  313 

if  it  can  see  a  general  charitable  intention,  consislent  with  the 
rules  of  law,  even  if  the  particular  manner  indicated  by  the 
donor  is  illegal  or  impracticable  ;^  or  as  Lord  Ilardwicke  said, 
"  The  bequest  is  not  void,  and  there  is  no  authority  to  construe 
it  to  be  void,  if  by  law  it  can  possibly  be  made  good  ;  "  or,  in 
other  words,  "  there  is  no  authority  to  construe  it  to  be  void 
by  law  if  it  can  possibly  be  made  good."  ^  But  no  forced  con- 
struction will  he  adopted  to  uphold  the  gift.^  If  the  fair  mean- 
ing of  the  words  may  include  a  legal  as  well  as  an  illegal 
application,  the  gift  will  be  upheld,  and  restrained  within  the 
bounds  of  law  ;  or  if  a  word  is  used  which  has  two  meanings, 
one  of  which  will  effect,  and  the  other  defeat,  the  purpose  of  the 
gift,  the  former  will  be  adopted.*  From  the  foregoing  cases 
and  principles,  it  will  be  seen  that  courts  of  chancery  uphold 
and  administer  gifts  where  they  are  made  to  particular  pur- 
poses which  are  charitable  within  the  letter  and  spirit  of  the 
statute,  or  where  they  are  made  to  charity  generally,  if  there 
is  a  trustee  with  power  to  make  them  definite  and  certain.  It 
will  furtlier  l)e  seen,  that  the  word  "  charity"  has  obtained  a 
signification  in  law,  and  that  courts  do  not  uphold  or  administer 
trusts  for  particular  purposes  which  are  not  charitable  within 
the  meaning  of  the  law  ;  nor  trusts  expressed  in  general  words, 
whicli  do  not  come  within  the  legal  signification  of  the  word 
"  charity." 

'  Williams  v.  Williams,  4  Selden,  525;  Martin  v.  Margliam,  14  Sim.  230; 
Jackson  r.  Phillips,  14  Allen,  556;  Bartlett  v.  King,  12  Mass.  543;  Inglis 
V.  Sailor's  Snug  Harbor,  3  Pet.  117,  118. 

'  Soresljy  i;.  Hollins,  9  Mod.  221 ;  Amb.  211 ;  1  Coll.  Jurid.  439;  AttV- 
Gen.  V.  Whitechurch,  3  Yes.  144;  Curtis  v.  Ilutton,  14  Ves.  539;  Dent  v. 
Allcroft,  30  Beav.  340;  Feversham  v.  Ryder,  5  De  G.,  M.  &  G.  353; 
Edwards  v.  Hall,  11  Hare,  12  ;  6  De  G.,  M.  &  G.  89  ;  Philpot  v.  St.  George 
Hospital,  6  H.  L.  Ca.  338. 

8  Att'y-Gen.  v.  Williams,  2  Cox,  388;  Tatham  v.  Drumniond,  11  L.  T. 
(n.  s.)  325;  10  Jur.  (n.  e.)  1087. 

*  Whicher  v.  Hume,  14  Beav.  509 ;  1  De  G.,  M.  &  G.  50(5 ;  7  H.  L.  Ca. 
124;  Saltonstall  v.  Sanders,  11  Allen,  455;  Jackson  r.  Phillips,  14  Allen, 
657;  Bruce  v.  Presbytery  of  Deer,  L,  R.  1  H.  L.  Scot.  96. 


314  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

§  710.  In  ftrder  that  there  may  be  a  good  trust  for  a  charita- 
ble use,  there  must  always  be  some  public  benefit  open  to  an 
indefinite  and  vague  number ;  that  is,  the  persons  to  be  bene- 
fiited  must  be  vague,  uncertain,  and  indefinite,  until  they  are 
selected  or  appointed  to  be  the  particular  beneficiaries  of  the 
trust  for  the  time  being.  Consequently  a  trust  to  establish  a 
school  which  is  not  free,  but  the  benefits  of  which  are  confined 
to  particular  individuals  who  are  named  in  the  will,  is  not  a 
charitable  trust,  and  will  not  be  regulated  by  the  court.^  A 
trust  for  forming  a  museum  in  connection  with  the  trustees  of 
Shakespeare's  house  in  Stratford,  and  for  such  other  purposes 
as  the  executors  should  think  fit,^  is  not  charitable,  because  the 
benefit  is  confined  to  particular  individuals,  and  also  because 
the  executor  has  the  power  to  apply  the  funds  to  "  other  pur- 
poses," which  may  be  any  thing  but  charitable.  A  trust  for 
the  political  restoration  of  the  Jews  to  Jerusalem  is  not  char- 
itable in  its  nature  ;  ^  and  so  a  gift  to  secure  the  passage  of  laws 
granting  women  the  right  to  vote  and  hold  office,  and  the  rights 
of  men  generally,  has  nothing  of  the  idea  of  charity  in  it.* 
Money  contributed  by  the  members  of  a  club  to  a  common 
fund,  to  be  applied  to  the  relief  and  assistance  of  the  particular 
members  of  the  club  when  in  sickness,  want  of  employment, 
or  other  disability,  is  not  a  charitable  fund  to  be  controlled  by 
a  court  of  equity.^  There  is  a  distinction  between  a  fund  con- 
tributed by  members  of  a  club,  society,  association,  or  lodge, 
to  be  employed  and  disposed  of  among  themselves  as  the  mem- 
bers may  at  any  time  agree,  and  a  gift  conferred,  as  matter  of 
bounty,  upon  such  club,  society,  or  lodge,  in  trust  to  be  distrib- 

1  Blandford  v.  Fackerell,  -4  Bro.  Ch.  894 ;  Att'y-Gen.  v.  Hewer,  2  Vern. 
387.     A  school  of  art  was  said  not  to  be  charitable.     Duke,  128. 

^  Thompson  v.  Shakespeare,  1  John.  612 ;  6  Jur.  (n.  s.)  118,  281 ;  1  De 
G.,  F.  &  J.  399. 

3  Habershon  v.  Vardon,  7  Eng.  L.  &  Eq.  228 ;  4  De  G.  «&  Sm.  467. 

■*  Jackson  v.  Phillips,  14  Allen,  571. 

s  Babb  V.  Reed,  5  Rawle,  151;  AttV-Gen.  v.  Federal  St.  Meeting- 
house, 3  Gray,  44;  Anon.  3  Atk.  277;  Brenon's  Estate,  Brightly,  345. 


§§710,711.]       GIFTS    WHICH    ARE    NOT    CHARITABLE,  315 

uted  in  charity.  In  tlie  latter  case,  it  is  a  charitable  use,^  and 
cannot  be  divided  among  the  members  in  disregard  of  the  pur- 
poses for  which  the  funds  were  contributed.^  A  bequest  to  a 
corporation  to  enable  it  to  keep  a  larger  supply  of  corn  in  Lon- 
don for  the  market  is  not  charitable  ;  ^  and  a  devise  to  a  corpora- 
tion to  distribute  the  rents  among  twenty-four  persons  named,  as 
they  may  need  assistance,  is  not  charitable  ;  but  it  gives  a  vested 
right  to  each  of  the  cestuis  que  trust  to  seek  redress  in  equity.^ 

§  711.  There  are  other  cases  where  legacies  are  given  in  trust 
for  purposes  that  are  clearly  charitable  ;  but  these  purposes  are 
joined  with  words  that  authorize  the  trustees  to  expend  the  fund 
for  general  purposes  which  are  not  charitable.  If  the  fund  is 
not  apportioned  Ijy  the  donor,  the  trustees  may  expend  the  whole 
for  one  purpose  or  another  which  is  not  charitable,  and  at  the 
same  time  execute  the  exact  power  given  them  under  the  will. 
In  such  cases,  courts  cannot  establish  and  administer  the  fund 
as  charitable.  For  example,  a  gift  for  such  cliarital)le  and  othei' 
purposes  as  the  executors  might  think  fit  cannot  be  sustained 
as  charitable  ;  for  the  executors  have  power  by  the  will  to  apply 
the  whole  to  purposes  other  than  charitable.^  So  a  gift  to  exec- 
utors in  trust  to  dispose  of  it  at  their  pleasure,  either  for  char- 
itable or  public  purposes,  or  to  any  person  or  ])Crsons  in  such 
shares  as  they  should  think  fit,  was  not  sustained  for  the  same 
reason.^  So  gifts  in  trust  for  such  uses  as  the  trustees  see  fit,'^ 
or  to  such  persons  as  the  trustees  think  fit,*'  have  no  element  of 
charity  in  them  that  courts  can  administer.    A  gift  in  trust  for 

'  Duke  V.  Fuller,  9  N.  H.  .538;  Vanden  Volgon  v.  Yates.  3  Barb.  Ch. 
290  ;  Thomas  v.  Ellmakor,  1  Par.  Eq.  108;  Peiifield  v.  Sumner,  11  Vt.  226; 
Wright  V.  Lynn,  9  IJarr,  433;  Indianapolis  i'.  Grand  Master,  2.")  Ind.  518. 

*  Potts  V.  Philadelphia  Association,  1  (Pa.)  Leg.  Gaz.  R.  3G9. 
8  Att'y-Gen.  v.  Haberdasher's  Co.  1  My.  &  K.  420. 

*  Liley  v.  Hey,  1  Hare,  680;  Philadelphia  v.  Fox,  64  Ponn.  St.  170. 
5  Ellis  I'.  Selby,  1  M.  &  Cr.  286,  299 ;  7  Sim.  852. 

*  ,Vezey  v.  Jamson,  1  S.  &  S.  69. 

'  Fowler  v.  Garlike,  1  Russ.  &  My.  232;  Nash  i>.  Morley,  5  Beav.  182. 

*  Gibbs  V.  Ramsey,  2  Ves.  &  B.  295. 


316  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

the  relief  of  domestic  distress,  assisting  indigent  but  deserv- 
ing individuals,  or  encouraging  works  of  general  utility,^  was 
not  sustained.  So  a  trust  for  benevolent  purposes  was  not 
sustained,  as  benevolence  may  or  may  not  be  charitable  in  the 
law.2  For  the  same  reason  where  a  bequest  was  made  to  the 
Bishop  of  Durham,  in  trust  for  such  objects  of  benevolence  and 
liberality  as  he  should  approve,  the  court  held  that  the  fund 
could  not  be  administered  as  a  charity,  and  ordered  it  to  be  paid 
over  to  the  next  of  kin.-^  These  cases  all  proceed  upon  the 
maxim,  that  a  trust  to  be  valid  must  be  under  the  control  of  a 
court,  and  the  trust  must  be  of  such  a  nature  that  its  adminis- 
tration can  be  reviewed.  A  trust  for  charity  must  therefore  be 
governed  by  some  principles  that  are  familar  to  the  court. 
These  principles  have  grown  up  in  relation  to  the  words 
"  charity,"  and  a  "  charitable  use,"  and  to  descriptions  that 
come  within  them  ;  but  there  are  no  rules  that  can  be  applied 
to  mere  benevolence,  liberality,  or  generosity,  or  to  any  words 
that  give  a  discretion  and  power  to  the  trustees  to  apply  the 
funds  to  any  purposes  within  the  whole  range  of  human  action. 

§  712.  In  addition  to  the  above  cases  which  proceed  upon 
clear  and  intelligible  principles,  are  two  cases  which  have  given 
rise  to  much  criticism  and  discussion.  Ommanney  v.  Butcher^ 
decided  that  a  trust  for  "  private  charity  "  could  not  be  admin- 
istered in  a  court  of  equity.  Williams  v.  Kershaw^  determined 
that  a  trust  for  "  benevolent,  charitable,  and  religious  purposes," 
was  not  a  good  charitable  use  within  the  letter  or  spirit  of  the 
statute.  The  objection  to  the  first  case  is,  that  "  private  charity  " 
refers  to  private  alms-giving,  or  private  relief  of  the  poor ;  that 
the  objects  of  such  charity  are  uncertain  and  indefinite  until 

1  Kendall  v.  Granger,  5  Beav.  300. 

"  James  v.  Allen,  3  Mer.  17;  Norris  v.  Thompson,  4  C.  E.  Green,  311. 

3  Morice  v.  Bishop  of  Durham,  9  Ves.  399 ;  10  Ves.  522. 

*  Ommanney  v.  Butcher,  1  Turn.  &  Russ.  260. 

*  Williams  v.  Kershaw,  5  Law  Jur.  (n.  s.)  Ch.  84,  cited  1  Keen,  232 ; 
1  My.  &  Cr.  293. 


§§  711,  712.]  CRITICISM    UPON    CASES.  317 

selected  by  the  trustees ;  that  the  distribution  of  alms  and  relief 
to  the  poor  in  such  manner  is  no  more  personal  than  the  relief 
of  the  individual  })Oor  must  always  be  ;  that  the  trustees  can  be 
required  to  account  for  the  distribution  of  the  funds,  and  that 
they  can  be  dealt  with  by  the  court  for  any  bad  faith  or  breach 
of  the  trust ;  in  short  that  such  a  gift  has  all  the  elements  of  a 
good  charitable  use.  The  principal  objection  to  the  other  deci- 
sion is,  that  the  word  "  benevolent,"  in  the  connection  in  which 
it  was  used,  signified  "  charitable ; "  that,  upon  tlie  most  ap- 
proved rules  of  interpretation  applied  to  charitable  bequests, 
the  word  should  have  had  its  meaning  fixed  by  the  context ; 
and  that,  taking  all  together,  a  good  charitable  use  was  intended, 
and  not  a  general,  liberal,  or  benevolent  use.  Mr.  Boyle  ex- 
amines and  criticises  these  cases  at  great  length,  and  concludes 
that  they  are  not  true  expositions  of  the  law.^  In  Massachusetts, 
a  bequest  was  made  in  trust  "  in  aid  of  ol)jects  and  purposes  of 
benevolence  or  charity,  public  or  private."  Mr.  Justice  Gray 
examined  these  cases  with  great  care,  and  arrived  at  the  con- 
clusion that  they  were  at  least  of  doubtful  authority  in  England, 
and  that  they  certainly  would  not  be  followed  in  Massachusetts.^ 

1  Boyle  on  Charities,  pp.  286-299. 

*  Saltonstall  v.  Sanders,  11  Allen,  462.  In  this  case,  Mr.  Justice  Gray 
says :  "  The  decision  which  goes  furthest  to  support  the  position  of  the 
plaintiffs  as  to  the  meaning  of  the  words  '  private  charity '  is  that  of  Oni- 
manney  v.  Butcher,  Turn.  &  lluss.  200.  There  a  testator,  after  legacies 
to  certain  individuals,  and  to  various  schools,  hospitals,  and  other  religious 
and  charitable  institutions  of  which  he  was  a  governor  or  trustee,  added, 
'  In  case  there  is  any  money  remaining,  I  should  wish  it  to  be  given  in  pri- 
vate charity.'  Sir  Thomas  IMumcr,  M.  R.,  held  tliis  last  bequest  too  indefi- 
nite to  be  carried  out,  either  by  the  sign-manual  of  the  crown,  or  by  the 
ordinary  jurisdiction  in  chancery.  The  opinion  does  not  show  that  degree 
of  thought  and  research  which  characterizes  most  of  the  judgments  of  that 
learned  person.  His  statement  that  there  was  no  case  in  which  private 
charity  had  been  acted  upon  by  the  court  is  inconsistent  with  the  long  line 
of  atithorities  above  quoted,  not  one  of  which  is  noticed  in  the  opinion, 
except  Legge  t>.  Asgill ;  and  no  attempt  is  made  to  distinguisii  tiiat  case, 
although  the  direction  there  that  any  money  left  unemployed  might  '  be 
given  in  charity,'  as  Mr.  Boyle  remarks  in  his  able  and  discriminating 
treatise,  '  surely  must  be  regarded  as  pointing  quite  as  much,  if  not  more, 


318  TRUSTS    FOR   CHARITABLE    USES.  [CHAP.  XXIII. 

Ill  New  Jersey,  a  gift  in  trust  to  be  distributed  "  to  benevolent, 
religious,  and  charitable  institutions,"  at  the  discretion  of  the 

to  private  than  to  public  charity.'  Boyle  on  Charities,  300.  Sir  Thomas 
Plumer's  expression,  that  '  the  charities  recognized  by  this  court  are  public 
in  their  nature,  they  are  such  as  the  court  can  see  to  the  execution  of,'  sug- 
gests the  inference  that  he  thought  it  necessary  to  have  the  funds  distributed 
openly  in  the  pubhc  view,  or  the  court  could  not  supervise  the  distribution. 
This  inference  is  confirmed  by  his  adding,  '  assisting  individuals  in  distress 
is  private  charity;  but  how  can  such  a  charity  be  executed  by  the  court?  ' 
To  which  it  may  be  answered,  '  By  requiring  an  account,  as  of  any  other 
trustee  who  is  charged  with  neglect  or  breach  of  trust.'  And  the  cases 
already  cited  show  that  Lord  Hardwicke,  Lord  Eldon,  Sir  William  Grant, 
and  Sir  John  Leach  upheld  and  executed  charities  for  privately  assisting 
indefinite  numbers  of  individuals  in  distress.  Sir  Thomas  Plumer  says,  '  In 
all  cases  the  general  principle  is,  that  the  trust  must  be  of  such  a  tangible 
nature  as  that  the  court  can  deal  with  it;  when  it  is  mixed  up  with  general 
moral  duty,  it  is  not  the  subject  of  the  jurisdiction  of  a  court  of  justice.' 
But  general  moral  duty,  carried  out  in  acts  beneficial  to  an  indefinite  number 
or  class  of  persons,  is  of  the  very  essence  of  a  charity;  and,  in  the  cases  in 
which  trusts  have  been  set  aside  as  too  vague,  it  has  been  upon  the  ground  that 
they  might  be  applied  to  the  benefit  of  particular  individuals,  to  benefit 
whom  was  of  no  general  or  public  advantage.  If,  as  he  says,  '  private 
charity  is  in  its  nature  indefinite,'  it  has  the  principal  requisite  of  a  public 
charity.  This  judgment  of  Sir  Thomas  Plumer,  although  countenanced  by 
obiter  dicta  of  Lord  Cottenham  near  the  beginning  of  his  'career  as  chan- 
cellor, in  Williams  v.  Kershaw,  5  Law  Jour.  (n.  s.)  Ch.  86,  and  Ellis  v.  Selly, 
1  Myl.  &  Cr.  293,  cannot,  in  a  court  not  bound  by  it  as  a  precedent,  out- 
weigh all  the  other  authorities. 

"  There  is  a  species  of  organization,  sometimes  called  a '  private  charity,' 
which  is  not  a  public  or  general  charity  in  the  view  of  the  Stat,  of  Eliz.,  or 
of  a  court  of  chancery ;  and  that  is  an  association  for  the  mutual  benefit  of 
the  contributors,  and  of  no  other  persons.  But  such  a  case  wants  the  essen- 
tial element  of  indefiniteness  in  the  immediate  objects,  if  not  that  of  gratuity 
in  the  contribution.  Anon.  3  Atk.  277 ;  Attorney-General  v.  Haberdashers' 
Co.  1  Myl.  &  K.  420;  Carne  v.  Long,  2  De  G.,  F.  &  J.  75;  Attorney- 
General  V.  Federal  St.  Meeting-house,  3  Gray,  44-52.  Upon  no  reasonable 
construction  can  a  bequest  to  '  private  charity,'  still  less  one  to  '  charity 
public  or  private,'  he  brought  within  that  class. 

"  The  decisions  of  Lord  Langdale,  to  which  the  plaintiffs  have  referred, 
were  as  follows :  In  one  of  them  he  held  a  bequest  to  executors  to  receive 
the  interest  half-yearly,  '  and  divide  it  among  poor  pious  persons,  male  or 
female,  old  or  infirm,  as  they  see  fit,  not  omitting  large  and  sick  families,  if 
of  good  character,'  to  be  a  valid  charitable  bequest  for  the  poor.  Nash  v. 
Morley,  6  Beav.  177.     In  the  other,  of  a  bequest  to  trustees  to  be  applied 


§  712.]  CRITICISM   UPON   CASES.  319 

wife  of  the  testator,  was  declared  not  to  be  a  good  charitable 
use,  and  that  the  word  ''  benevolent,"  in  the  collocation  in  which 

at  their  discretion,  '  for  the  relief  of  domestic  distress,  assistin^j;  indigent  but 
deserving  individuals,  or  encouraging  undertakings  of  general  utility,'  Lord 
Langdale  said  that  if  the  sentence  had  ended  with  the  word  '  individuals ' 
it  would  have  been  a  good  charitable  purpose ;  but  he  felt  himself  bound  by 
the  decisions  to  hold  that  the  words  '  general  utility  '  (which  do  not  occur 
in  the  will  before  us)  were  large  enough  to  include  purposes  which  were  not 
charitable,  and  that  the  whole  bequest  was  therefore  void.  Kendall  v. 
Granger,  5  Beav.  300. 

"  In  Ellis  V.  Selly,  7  Sim.  352 ;  S.  C.  1  Myl.  &  Cr.  286,  the  only  point 
decided  was,  that  a  becjuest  in  trust  for  '  charitable  or  other  purposes,'  as 
the  trustee  should  think  fit,  was  void.  The  correctness  of  that  decision  can- 
not be  doubted ;  for  the  testator  could  hardly  have  expressed  more  clearly 
an  intention  to  allow  the  fund  to  be  applied  to  purposes  which  were  not 
charitable,  as  well  as  to  those  which  were.  The  decision  of  Sir  John  Leach, 
in  Vezey  v.  Jamson,  1  Sim.  &  Stu.  69,  against  the  validity  of  a  gift  in  trust 
for  '  such  charitable  or  public  purposes  as  the  laws  of  the  land  would  admit 
of,  or  to  any  person  or  persons,'  and  in  such  shares  and  manner  as  the  trus- 
tees should  think  fit  or  as  the  laws  admitted  of,  is  to  the  same  effect ;  and 
manifests  no  intention  to  overrule  or  qualify  the  cases  in  which  he  had  upheld 
trusts  for  '  i)ublic  or  private  charities,'  or  '  to  be  distributed  in  charity  to 
private  individuals  or  public  institutions,'  or  for  '  charitable  and  benevolent 
purposes.'  Johnston  v.  Svvann  and  Horde  v.  Earl  of  Suffolk,  u(  supra  ; 
Jemmit  v.  Verril,  infra,  and  the  passages  quoted  from  Lord  Lyndhurst's 
opinion  in  Mitford  v.  Reynolds,  1  Phil.  190,  and  from  Tudor  on  Charitable 
Trusts  (2d  ed.),  223,  go  no  further.  Within  the  same  class  falls  the  decision 
of  Vice-Chancellor  Knight  Bruce,  that  a  direction  that  part  of  the  testator's 
property  should  '  be  given  in  occasional  sums  to  deserving  literary  men,  or 
to  meet  ex[)enses  connected  with  my  manuscript  works,'  part  of  the  profits 
of  which  works  he  gave  to  members  of  his  family,  was  void.  Thompson  v. 
Thompson,  1  Colly.  II.  388,  392,  399.  Others  of  the  cases  cited  for  the 
plaintiffs  related  to  bequests  in  trust  to  be  disposed  of  in  the  trustees'  dis- 
cretion, without  any  mention  whatever  of  charities  in  the  will.  Such  were 
Fowler  v.  Garlike,  1  Russ.  &  Myl.  232,  and  Stubbs  v.  Sargon,  2  Keen,  255 ; 
S.  C.  3  Myl.  &  Cr.  507. 

"  We  are  therefore  of  opinion,  tliat,  upon  principle  and  authority,  a 
bequest  for  '  objects  and  purposes  of  charity,  public  or  private,'  is  a  valid 
charitable  gift.  The  effect  of  the  use  of  the  word  '  benevolence '  in  con- 
nection with  the  word  '  charity  '  remains  to  be  considered. 

"  The  earliest  case  cited  for  the  plaintiffs  upon  this  point  is  that  in  which 
Sir  William  Grant  and  Lord  Eldon,  on  appeal,  held  that  a  bequest  to  the 
Bishop  of  Durham  in  trust  to  be  applied  'to  such  objects  of  benevolence 
and  liberality  as  the  Bishop  of  Durham,  in  his  own  discretion,  should  most 


320  TRUSTS    FOR   CHARITABLE    USES.  [CHAP.  XXIII. 

it  was  found  in  that  will,  did  not  mean  "  charitable."  ^  The 
word  "  benevolent "  has  often  been  construed  l)y  the  court  to 

approve  of,'  was  too  indefinite  to  be  executed.  Morice  v.  Bishop  of  Dur- 
ham, 9  Ves.  399;  S.  C.  10  Ves.  521.  But  '  liberality'  might  include  gifts 
to  persons  who  were  neither  poor  or  deserving,  and  in  no  sense  legal  or 
moral  objects  of  charity.  The  word  '  charity'  was  not  used  ;  and  its  absence 
was  much  relied  on,  Sir  William  Grant  saying,  '  The  use  of  the  word  "  char- 
itable" seems  to  have  been  purposely  avoided  in  this  will,  in  order  to  leave 
the  bishop  the  most  unrestrained  discretion.'  9  Ves.  404,  405;  10  Ves.  541. 
Sir  William  Grant  afterwards  held,  that  a  bequest  to  trustees  '  to  be  by  them 
applied  and  disposed  of  for  and  to  such  benevolent  purposes  as  they  in  their 
integrity  and  discretion  may  unanimously  agree  on,'  fell  within  the  same 
class.  James  v.  Allen,  3  Mer.  17.  But  in  that  case  again,  the  word 
'  charity  '  was  not  used.  Lord  Brougham  subsequently  defined  the  distinc- 
tion upon  which  those  cases  turned,  thus :  '  If  the  intention  be  charity,  the 
court  Avill  execute  it,  however  vaguely  the  donor  may  have  indicated  his 
purpose.  But  mere  purposes  of  a  kind  generally  beneficial,  as  of  those  of 
benevolence  or  liberality,  without  specifying  the  objects  who  are  to  receive, 
and  those  objects  not  being  the  poor,  the  court  will  never  attempt  to  execute.' 
Attorney-General  v.  Haberdashers'  Co.  1  Myl.  &  K.  428. 

"Vice-Chancellor  Leach  used  '  general  benevolence'  as  equivalent  to 
charity.  He  held  a  bequest  '  to  the  Avidows  and  orphans  of  the  parish  of 
Lindfield '  to  be  a  charitable  gift  for  the  poor  widows  and  orphans  of  that 
parish,  because  it  '  could  not  in  its  nature  have  proceeded  from  motives  of 
personal  bounty  to  particular  individuals ;  it  must  have  proceeded  from 
general  benevolence  towards  two  classes  of  persons  who  were  suffering 
under  a  common  circumstance  of  destitution  or  privation,  and  is  necessarily 
to  be  confined  to  such  of  those  two  classes  who  are  within  the  scope  of  gen- 
ei-al  benevolence.'  Attorney-General  v.  Comber,  2  Sim.  &  Stu.  93.  And 
he  upheld  a  bequest  to  trustees  to  be  applied  and  disposed  of  '  for  such 
charitable  and  benevolent  purposes  '  as  one  of  them  should  direct  and  think 
proper.     Jemmit  v.  Verril,  Amb.  585,  note. 

"  By  far  the  strongest  case  in  fiivor  of  the  plaintiffs  is  that  of  Williams  v. 
Kershaw,  which  is  not  to  be  found  in  any  of  the  regular  reports,  but  is 
reported  by  Mr.  Beavan  in  5  Law  Jour.  (n.  s.)  Qh.  84,  and  an  abstract  of 
it  printed  in  5  Clark  &  Fin.  111.  In  that  case,  a  testator,  after  legacies  for 
education,  the  poor,  missionary  societies,  and  dissenting  ministers,  gave  the 
residue  of  his  personal  estate  to  trustees,  to  apply  the  income  '  to  and  for 
such  benevolent,  charitable,  and  religious  purposes  as  they  in  their  discretion 
shall  think  most  advantageous  and  beneficial.'  Sir  Christopher  C.  Pepys, 
M.  R.,  considered  himself  bound  by  the  cases  of  Morice  v.  Bishop  of  Dur- 


'  Norris  v.  Thompson,  4  C.  E.  Green,  308. 


§  712.]  BENEVOLENCE.  321 

mean  the  same  thing  as  "  charitable  "  in  the  la\y,  and  trusts  for 
benevolent  or  charitable  purposes  have  been  carried  into  effect.^ 
In  Massachusetts,  tlie  word  "  benevolence  "  has  been  so  often 
used  in  the  constitution  of  the  State,  and  in  so  many  general 
and  private  statutes  as  equivalent  to,  and  synonymous  with, 

ham,  James  v.  Allen,  and  Ommanney  v.  Butcher,  to  hold  that  this  would 
authorize  the  application  of  the  income  to  benevolent  purposes  which  were 
neither  charitable  nor  religious,  and  was  therefore  void ;  and  two  months 
afterwards,  having  meanwhile  become  Lord  Chancellor  Cottenham,  he 
referred  to  the  decision  with  approval.     Ellis  v.  Selby,  1  Myl.  &  Cr.  298. 

"  But  that  decision  is  directly  opposed  to  the  construction  given  to  like 
words  in  earlier  and  later  judgments  of  the  House  of  Lords  upon  appeals 
from  the  courts  of  Scotland.  In  Hill  v.  Burns,  2  Wil.s.  &  Shaw,  80,  a 
bequest  was  held  valid  by  which  a  testatrix  appointed  the  residue  of  her 
estate  '  to  be  applied  by  my  said  trustees  in  aid  of  the  institutions  for  char- 
itable and  benevolent  purposes,  established  or  to  be  established  in  the  city 
of  Glasgow  or  neighborhood  thereof;  and  that  in  such  way  and  manner, 
and  in  such  proportions  of  the  principal  or  capital,  or  of  the  interest  or 
annual  proceeds  of  the  sums  so  to  be  appropriated,  as  to  my  .said  trustees 
shall  seem  proper;  declaring,  as  I  hereby  expressly  provide  and  declare, 
that  they  shall  be  the  judges  of  the  appropriation  of  the  said  residue  for 
the  purposes  aforesaid.'  That  case  was  cited  as  authority  by  Lord  Lynd- 
hurst  in  Critchton  v.  Grierson,  3  Bligh,  N.  R.  434  ;  S.  C.  3  Wils.  &  Shaw, 
341.  In  a  later  case,  in  which  Williams  v.  Kershaw  was  cited,  the  House 
of  Lords  established  a  residuary  bequest  to  trustees  to  be  applied  '  to  such 
benevolent  and  charitable  purposes  as  they  think  proper,'  recommending 
them,  if  it  should  amount  to  £600,  to  hold  the  principal,  and  pay  out  the 
income  annually  '  to  faithful  domestic  servants,  settled  in  Glasgow  or  the 
neighborhood,  who  can  produce  testimonials  of  good  character  and  morals 
from  their  masters  and  mistresses  after  ten  years'  service  ; '  but  if  less  than 
that  amount  the  testator  authorized  his  trustees  '  to  distribute  the  same  to 
such  charitable  or  benevolent  purposes  as  they  may  think  proper.'  Miller 
V.  Rowan,  5  Clark  &  Fin.  99;  S.  C.  2  Shaw  &  Macl.  866. 

"  It  was  indeed  said,  in  the  two  cases  last  cited,  that  the  law  of  England 
as  to  charitable  bequests  was  more  strict  than  the  law  of  Scotland.  But  the 
decisions  of  the  English  courts  since  our  revolution  are  of  no  binding  author- 
ity in  this  court;  and,  upon  such  a  question  as  the  interpretation  of  the 
word  'benevolence,'  as  connected  with  'charity,'  of  no  peculiar  weight, 
when  opposed  to  the  well-settled  meaning  of  those  words  in  our  own 
law." 

^  Miller  v.  Rowan,  5  CI.  &  Fin.  99;  Jemmit  r.  Verril,  Ainb.  585,  n. ; 
Hill  V.  Burns,  2  Wils.  &  Shaw,  8(J;  Saltonstall  v.  Sanders,  11  Allen,  465; 
Johnson  v.  Swan,  3  Mad.  457. 

VOL.  II.  21 


322  TRUSTS   FOR   CHARITABLE   USES.        [CHAP.  XXIII. 

the  word  "  charity,"  that  it  has  come  to  have  that  meaning  in 
the  law.i 

§  713.  There  is  another  class  of  trusts  for  charities  that 
courts  decline  to  sustain  and  administer,  on  the  ground  that 
they  are  too  general,  vague,  and  indefinite  to  be  applied  to  any 
certain  charitable  use.  This  class  is  larger  in  America  than 
in  England,  as  the  Lord  Chancellor  in  the  English  chancery 
can  exercise  the  prerogative  of  the  crown  in  administering  an 
indefinite  trust ;  but  American  courts  can  exercise  only  the 
ordinary  judicial  powers  of  courts  of  equity.  Even  in  England, 
Lord  Chancellor  Thurlow  declined  to  sustain  a  trust  to  buy  and 
distribute  such  books  as  might  have  a  tendency  to  promote  the 
interest  of  virtue  and  religion  and  the  happiness  of  mankind.^ 
Where  a  testator  directed  his  executors  to  pay  over  certain 
property  for  the  benefit  of  the  Methodist  Episcopal  Church  in 
America,  to  be  disposed  of  by  the  conference,  or  the  different 
members  composing  the  same,  as  they,  in  their  godly  wisdom, 
shall  judge  will  be  most  expedient  or  beneficial  for  the  increase 
or  prosperity  of  the  gospel,  it  was  held  that  the  bequest  was 
void  for  uncertainty.^  A  devise  to  the  annual  conference  of 
the  Methodist  Episcopal  Church  for  the  benefit  of  institutions 
of  learning  under  the  superintendence  of  said  conference,  and 
the  missionary  society  of  said  church,  and  to  be  otherwise  dis- 
posed of  as  the  Tennessee  annual  conference  may  deem  best 
in  their  wisdom,  Avas  held  void  ;  and  an  act  of  the  legislature 
appointing  trustees  to  receive  the  fund  was  held  unconstitutional 
and  void.'*  A  bequest  to  be  applied  to  home  or  foreign  mis- 
sions and  poor  saints  was  held  void ;  ^  and  so  a  direction  to  the 

'  Saltonstall  v.  Sanders,  11  Allen,  468,  470.  In  a  late  case  not  yet  re- 
ported it  has  been  decided  that  a  gift  for  benevolent  purposes,  with  no  words 
in  the  context  to  give  a  construction  to  the  meaning,  cannot  be  sustained 
as  a  charity. 

^  Brown  v.  Yeall,  7  Ves.  50,  n.  76;  9  Ves.  406;  10  Ves.  27,  cited. 

3  Holland  v.  Peck,  2  Ired.  Ch.  255. 

*  Green  v.  Allen,  5  Humph.  170. 

*  Bridges  v.  Pleasants,  4  Ired.  Ch.  26. 


§§  712-714.]       TRUSTS  NOT  SUSTAINED.  323 

trustees  to  expend  any  surplus  income  for  the  support  of  in- 
digent pious  young  men  preparing  for  the  ministry  in  New- 
Haven,  was  hekl  void.^  A  bequest  to  be  expended  in  the  educa- 
tion of  colored  children,  both  male  and  female,  in  such  manner 
as  may  be  deemed  best,  the  object  being  to  promote  the  moral 
and  religious  improvement  of  the  colored  race,  was  held  to  be 
too  indefinite,  and  therefore  void,  there  being  no  trustees  with 
the  power  of  selecting  the  objects  of  the  charity .^  If  there  were 
trustees  in  these  cases  ready  and  willing  to  receive  the  funds, 
and  to  execute  the  powers  conferred  by  the  testaments,  and  to 
select  the  objects  of  the  trust  and  thus  make  them  certain,  and 
apply  the  funds  to  such  objects,  it  is  difficult  to  see  why  the 
courts  could  not  have  carried  these  trusts  into  effect  without 
invoking  any  extraordinary  powers. 

§  714.  If  the  sum  to  be  given  to  a  charitable  use  be  left  blank 
or  uncertain,  the  trust  will  fail  ;  as  where  X6,000  was  given  for 

a  hospital  to  increase  till  it  amounted  to for  supporting 

boys,s  it  was  held  to  have  failed.     So  if  the  original  sum 

to  be  given  is  not  specified ;  *  and  if  a  gross  sum  is  given  for 
charital)le  uses,  and  for  other  purposes  which  fail  for  illegality 
or  indefiniteness,  or  for  want  of  certainty  in  the  sum  to  be 
applied  to  the  charity,^  the  trust  will  fail.  But  where  a  sum 
certain  was  given  to  a  testator's  relations,  and  to  a  cliarity,  but 
the  proportions  were  not  named,  the  court  applied  the  maxim 
that  equality  is  equity^  and  divided  the  fund  equally  between 
the  family  and  the  charity.*^     Mr.  Boyle  contends,  that,  as  the 

'  White  t;.  Fisk,  2-1  Conn.  31. 

'  Grimes  v.  Ilariuond,  35  Ind.  198. 

^  Ewen  y.  Baniiciinan,  2  Dow.  &  CI.  74. 

*  Flint  V.  Warren,  15  Sim.  626;  Second  Cong.  Soc.  v.  First  Cong.  Soc. 
14  N.  II.  315;  Russell  v.  Jackson,  10  Hare,  204;  Cox  v.  Bassett,  3  Ves. 
155;  Hartshorne  v.  Nichols,  26  Beav.  58. 

*  1  Jarman  on  Wills,  pp.  195,  196  (ed.  1861). 

«  Att'y-Gen.  v.  Doyley,  2  Eq.  Ca.  Ab.  194;  4  Vin.  485;  7  Yes.  78,  n. ; 
Moggridge  v.  Thackwell,  3  Bro.  Ch.  517;  1  Ves.  Jr.  464;  7  Ves.  38; 
Mills  V.  Farmer,  1  i\Ier.  55;  19  Ves.  483;  Att'y-Gen.  v.  Bradley,  1  Eden, 
482 ;  Saulsbury  v.  Denton,  3  K.  &  J.  529  ;  Longman  v.  Brown,  7  Ves.  124 ; 
Penny  v.  Turner,  2  Phil.  493;  Tothill,  92,  95,  96. 


324  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

words  ill  Williams  v.  Kershaw  ^  were  ''  for  benevolent,  chari- 
table, and  religious  purposes,"  the  fund  should  have  been 
divided  into  three  parts,  as  two  of  the  purposes  were  good  at 
any  rate,  even  if  "  benevolent "  did  not  mean  "  charitable," 
and  two  parts  of  the  fund  should  have  been  applied  to  the  valid 
objects,  and  the  other  part  returned  to  the  next  of  kin.^  Where 
a  bequest  of  £1,000  was  made- to  the  Jews,  Poor  Mile  End,  and 
there  were  two  charitable  institutions  for  Jews  at  that  place, 
as  it  was  uncertain  to  which  the  bequest  was  intended,  the 
court  divided  it  equally.^  Where  a  testator  bequeathed  a  fund 
to  trustees  for  erecting  such  monument  to  his  memory  as  they 
saw  fit,  and  in  building  an  organ  gallery  to  the  church,  and  the 
trustees  expended  the  whole  sum  upon  the  monument,  the 
court  held  it  to  be  a  breach  of  the  trusts  In  all  these  cases, 
the  intention  of  the  testator,  to  be  gathered  from  the  whole 
will,  should  guide  in  the  administration  of  the  fund.^  Where 
a  testator  devised  a  sum  to  the  school  society  of  the  town  of  S., 
and  directed  that  the  society  should  annually  appoint  trustees 
to  hold  the  fund,  and  there  were  two  societies  of  the  same 
name,  the  court  ordered  the  trustees  to  be  appointed  by  both 
societies.^ 

§  715.  If  a  gift  is  made  for  a  purpose  called  charitable,  it 
will  not  be  upheld  if  it  contravenes  an  express  provision  of  law, 
or  if  it  is  for  a  purpose  forbidden  by  public  policy.     In  other 

1  5  L.  Jur.  (N.  s.)  Ch.  84;  5  CI.  &  Fin.  111. 

2  Boyle  on  Charities,  pp.  290-293;  Hoare  v.  Osborne,  L.  R.  1  Eq.  585. 
8  Bennett  v.  Hayter,  2   Beav.  81;  Waller  v.  Child,  Amb.  524;  Bishop 

Gore's  Charity,  4  Dr.  &  War.  270:  Simon  v.  Barker,  5  Russ.  112;  Pieschel 
V.  Paris,  2  S.  &  S.  384 ;  Saulsbury  v.  Denton,  3  K.  «&  J.  529.  In  re  Atchin's 
Trusts,  L.  R.  14  Eq.  232;  In  re  Kilvert's  Trusts,  L.  R.  7  Ch.  170;  Brad- 
shaw  V.  Thompson,  2  Y.  &  C.  Ch.  295. 

*  Adams  v.  Cole,  6  Beav.  353.     See  Down  v.  Worrall,  1  My.  &  K.  561. 

^  Harding  v.  Glyn,  1  Atk.  469 ;  Cole  v.  Wade,  16  Ves.  44 ;  Down  v. 
Worrall,  1  My.  &  K.  561;  Marlborough  v.  Godolphiu,  2  Ves.  61  ;  Brown 
V.  Higgs,  4  Ves.  708;  5  Ves.  495;  8  Ves.  561. 

^  First  Cong.  Soc.  of  Southington  v.  Atwater,  23  Conn.  56. 


§§  714,  715.]  GIFT    CONTRARY   TO    LAW.  325 

words,  courts  will  not  allow,  or  carry  into  effect,  charitable 
donations  which  tend  to  a  breach  of  the  laws  of  the  land. 
Thus  a  gift  for  procuring  the  discharge  of  persons  confined 
under  sentence  for  a  breach  of  the  criminal  laws  is  void.^  But 
a  gift  to  aid  fugitive  slaves  in  escaping  from  slavery  was  not 
held  illegal,  on  the  ground  that  there  were  many  ways  in  which 
it  could  be  employed  that  would  not  be  contrary  to  law.-  In 
England,  a  gift  to  promote  a  religious  faith,  contrary  to  the 
statute,  was  void.^  So  all  gifts  to  superstitious  uses,  so  called, 
such  as  praying  for  the  souls  of  the  dead,  maintaining  obit 
lamps,  and  for  other  similar  objects,  in  the  struggle  of  the 
Reformation  and  afterwards,  were  held  to  be  against  public 
policy  and  void.  But  in  this  country,  where  all  religious 
denominations,  doctrines,  and  forms  of  worship  are  tolerated, 
or  rather  protected,  so  long  as  the  public  peace  is  not  disturbed, 
there  can  be  in  the  law  no  such  thing  as  a  superstitious  use.^ 
The  most  common  illustration  of  the  rule,  that  courts  will  not 
nphold  gifts  for  charitable  purposes  where  such  gifts  contravene 
some  law,  is  found  in  the  numerous  cases  that  have  arisen  under 
the  English  Statute  of  Mortmain,  9  George  11. ,  c.  36,  and  otlier 
similar  statutes,  which  enacted  that  no  lands,  hereditaments, 
or  money  to  be  laid  out  in  lands,  shall  be  given  for  any  relig- 
ious or  charitable  purpose,  except  by  deed  executed  in  the 
presence  of  two  witnesses  twelve  months  before  the  death  of 
the  donor,  and  enrolled  as  therein  directed.  Under  this  statute, 
an  immense  number  of  charitable  bequests  have  been  defeated, 
because  they  contravened  tiie  law.  As  we  have  no  such  stat- 
utes in  America,  the  cases,  and  the  rules  established  by  tliem, 
are  not  stated.     They  only  serve  to  illustrate  otlicr  brandies  of 

1  Thrupp  V.  Collett,  26  Bcav.  12.5 ;  Russell  v.  Jackson,  10  Hare,  204. 

2  Jackson  v.  Phillips,  14  Allen,  570. 

^  De  Themmines  r.  De  Bonneval,  5  Russ.  288 ;  Da  Costa  v.  Do  Pas, 
Amb.  228;  2  Swan,  487,  n.  ;  1  Dick.  2.08;  Finley  v.  Hunter,  2  Strol).  Eq. 
218;  Johnson  v.  C'larkson,  3  Rich.  Eq.  .30.5;  Lusk  v.  Lewis,  \\2  Miss.  297. 

*  ^Methodist  Cliiinh  v.  Reniin<:ton,  1  Watts,  218;  Gass  v.  Wilhite, 
2  Dana,  170 ;  Magill  v.  Brown,  Brightly,  373. 


326  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

the  law  in  the  United  States,  but  have  no  direct  practical  appli- 
cation.^ In  New  York,  and  Pennsylvania,  there  are  statutes 
upon  the  subject ;  and  in  New  York  a  corporation  cannot  take 
lands  in  trust  for  a  charity  for  purposes  other  than  those  for 
which  the  corporation  was  chartered.^  And  so  if  a  corporation 
already  holds  all  the  property  it  is  authorized  to  take  under 
its  charter,  a  gift  to  it  for  charitable  purposes  lapses.^ 

§  716.  If  the  objects  and  purposes  for  which  a  trust  is  in- 
tended to  be  created  is  once  determined  to  be  charitable  wnthin 
the  intent  of  the  law,  and  if  the  trust  contravenes  no  law  or 
rule  of  public  policy,  courts  are  bound  to  give  effect  to  it,  if 
possible,  in  the  exercise  of  their  chancery  powers.  Of  course, 
in  carrying  into  effect  public  charities,  rules  suitable  and 
adequate  to  the  purpose  must  be  applied.  Where  a  testatrix 
gave  £2,000  to  a  trustee  for  the  purpose  of  enabling  him  to 
give  it  to  either  branch  of  the  testatrix's  family,  as  he  deemed 
most  prudent,  and  the  trustee  died  without  disposing  of  the 
fund,  the  court  said  that  the  trust  was  too  indefinite  to  be 

^  Those  who  desire  to  see  the  learning  and  the  cases  upon  the  English 
statute  of  mortmain,  may  consult  1  Jarman  on  Wills,  pp.  200-224 ;  Tudor 
on  Charities,  93,  101;  2  Redf.  on  Wills,  pp.  508-516  (2d  ed.). 

"  In  Pennsylvania,  Act  1855  provides  that  no  real  or  personal  property 
shall  be  given  to  charitable  uses,  except  by  deed  or  will  attested  by  two 
credible  or  disinterested  witnesses,  at  least  one  calendar  month  before  the 
decease  of  the  testator  or  grantor.  See  McLean  v.  Wade,  41  Penn.  St. 
266 ;  Taylor  v.  Mitchell,  57  Penn.  St.  209 ;  Miller  v.  Porter,  53  Penn.  St. 
297. 

In  New  York,  Act  1848,  c.  319,  provides  that  no  person,  having  a  wife, 
child,  or  parent,  shall  give  more  than  one-fourth  of  his  estate  to  charitable 
corporations,  and  no  gift  by  will  shall  be  valid  unless  executed  at  least  two 
months  before  his  death.  Act  of  1860  enabled  a  person  to  give  one-half  of 
his  estate  in  certain  cases.  See  Levy  v.  Levy,  33  N.  Y.  114;  Harris  v. 
Slaght,  46  Barb.  470 ;  White  v.  Howard,  52  Barb.  294 ;  Harris  v.  American 
Bib.  Soc.  2  N.  Y.  Dec.  36.  In  Georgia,  a  will  must  be  made  ninety  days 
before  the  death  of  the  testator,  if  there  is  a  wife  and  child  or  issue  of  a 
child  of  the  testator,  or  a  charitable  bequest  in  such  will  is  void.  Reynolds 
V.  Bristow,  37  Ga.  283. 

^  Cronnin  v.  Louisville,  &c.,  Soc.  3  Bush,  365. 


§§  715-718.]       JUDICIAL    AND    PREROGATIVE   POWERS.  327 

executed  in  favor  of  individuals.^  But  if  a  trust  is  created 
for  the  education  of  six  orphans,  to  be  selected  from  a  certain 
district  by  the  trustees,  and  the  power  can  be  executed  l>y  the 
trustees  or  their  successors,  there  certainly  is  no  difficulty  in 
carrying  the  trust  into  execution.  A  trust  created  for  the 
relief  of  the  poor  must,  of  course,  be  administered  differently' 
from  a  trust  to  pay  the  income  to  an  individual,  and  the  rules 
applicable  to  a  charitable  trust  must,  in  the  nature  of  things, 
differ  from  the  rules  governing  a  private  trust.  Both  sets  of 
rules  are  equally  within  the  chancery  powers  of  the  American 
courts.  A  trust  to  give  a  sum  of  money  to  an  individual 
named  is  certain  ;  and  so  a  trust  to  distribute  a  sum  of  money 
in  charity  to  the  poor  of  a  certain  district  is  certain,  accord- 
ing to  its  own  nature.  To  apply  the  same  rules  to  subjects  so 
diverse,  would  be  to  subvert  the  administration  of  law. 

§  717.  In  dealing  with  the  subject  of"  charities,  courts,  in 
many  cases,  seem  to  suppose  that  there  is  need  of  some  ex- 
traordinary powers  to  carry  them  into  effect :  they  have  used 
expressions  which  indicate  a  supposition  that  their  ordinary 
equity  powers  were  not  sufficient  to  give  effect  to  many  char- 
itable bequests.  The  fact  is,  that  the  ordinary  judicial  powers 
of  courts  of  equity,  applied  properly  to  the  subject-matter, 
are  sufficient  to  carry  into  effect  almost  all  charitable  bequests. 
The  professional  mind  of  America  has  labored  over  the  doc- 
trine of  cy  prcs  as  it  is  called,  and  has  seemed  to  suppose 
that  most  charitable  bequests  cannot  be  carried  out  without 
the  aid  of  some  arbitrary  power.  It  is  proposed  to  examine 
the  doctrine  of  cy  prcs,  and  afterwards  to  state  the  rules  in 
relation  to  certainty  in  the  trustees  for  a  charity  and  in  rela- 
tion to  certainty  in  the  objects  or  beneficiaries  of  a  charity. 

§  718.  In  studying  the  cases  upon  charitable  uses,  cited  in 
the  preceding  sections,  it  is  necessary  to  bear  this  suggestion 

^  Stubbs  V.  Sargon,  2  Keen,  255. 


328  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

constantly  in  mind  :  in  England  the  Court  of  Chancery,  or 
the  Lord-Chancellor,  exercised  a  double  function,  —  the  one 
a  judicial  function,  in  adjudicating  upon  the  legal  questions 
arising  upon  charitable  gifts  ;  the  other  a  ministerial  function, 
as  the  keeper  of  the  king's  conscience.  The  general  super- 
'intendence  or  administration  of  all  charities  was  in  the  king 
as  parens  jjatrice.  The  judicial  part  of  this  administration 
the  king  intrusted  to  the  ordinary  equity  jurisdiction  of  the 
Court  of  Chancery.  That  part  of  the  king's  jurisdiction  over 
charities  which  did  not  come  within  the  ordinary  equity  juris- 
diction of  the  court,  the  king  exercised  as  part  of  his  prerog- 
ative by  his  sign-manual.  The  chancellor  often  exercised  this 
prerogative  power  of  the  king  ;  and  thus  many  charities  have 
been  established  and  administered  by  the  chancellor,  and  no 
very  clear  line  has  been  drawn  between  those  established  by 
him  exercising  his  ordinary  judicial  power  in  the  Court  of 
Chancery,  and  those  established  by  the  extraordinary  or  pre- 
rogative power  of  the  crown  exercised  through  the  chancellor. 
Thus,  if  gifts  were  made  for  charitable  uses  that  were  illegal 
or  contrary  to  public  policy,  or  that  were  impossible  to  be 
carried  into  effect,  the  king,  as  general  supervisor  of  charities, 
could  devote  them  to  such  other  charitable  purposes,  cy  pres 
the  original  gift,  as  he  pleased.  This  he  did  through  his  pre- 
rogative power  by  his  sign-manual,  exercised  by  his  chan- 
cellor personally,  and  not  judicially.  The  instances  in  which 
such  prerogative  powers  were  exercised  are  reported  in  the 
books,  together  with  judicial  determinations,  and  thus  much 
misapprehension  and  confusion  have  arisen.  If  gifts  were 
made  to  establish  a  Jewish  synagogue,  to  teach  Judaism  in 
opposition  to  Christianity,  or  to  re-establish  the  supremacy 
of  the  pope,  or  to  educate  children  in  the  Catholic  faith  con- 
trary to  the  statutes,  or  to  promote  dissent  contrary  to  the 
acts  of  uniformity,  or  to  keep  alive  superstitious  customs  and 
practices,  the  charities  could  not,  of  course,  be  carried  into 
effect  as  given,  and  the  king  gave  effect  to  them  as  charities, 


§  718.]  JUDICIAL   AND    PREROGATIVE   POWERS,  329 

by  his  royal  prerogative,  cy  pres  the  original  purposes.^  This 
mode  of  procedure  was  founded  upon  this  reasoning  :  if  it 
appeared  that  the  donor  had  a  general  charitable  intent,  and 
that  the  particular  form  of  the  charity  was  not  of  the  sub- 
stance of  the  charity,  and  that  the  donor  did  not  contemplate 
that  his  heir  or  legal  representatives  should  ever  have  the 
property,  then  the  gift  should  not  result  or  revert  to  the  heir, 
but  should  be  employed  in  some  legal  charity,  as  near  to  the 
original  purpose  as  possible.^  This  seems  strange  to  modern 
ideas  ;  but  if  a  donor  has  indicated  a  general  charitable  pur- 
pose, and  has  disinherited  his  heir  to  that  extent,  it  is  no 
greater  outrage  upon  the  donor  to  devote  the  gift  to  some 
similar  charitable  purpose,  than  it  is  to  return  it  to  the  heir, 
and  not  employ  it  in  charity  at  all ;  and  so  if  a  gift  for  an 
illegal  charity  is  forfeited  to  the  king,  it  is  not  a  more  objec- 
tionable exercise  of  the  royal  prerogative  to  devote  that  gift  to 
some  other  charity,  cy  jyres  the  original  purpose,  than  to  expend 
it  in  private  indulgence.  But  whether  the  prerogatives  of 
the  British  crown  were  proper  or  improper,  or  whether  they 
were  wisely  exercised  or  not  in  the  cases  named,  is  no  ques- 
tion here.  No  such  power  exists  in  any  American  magistrates, 
judicial  or  ministerial,  and  none  can  exist  until  it  is  conferred 
by  the  legislature.  The  cases  named  are  not  law  in  Amer- 
ica, and  probably  nothing  Hive  them  will  ever  have  a  place  in 
its  jurisprudence. 

'  Att'y-Gen.  v.  Baxter,  1  Veni.  248;  1  Eq.  Ca.  Ab.  06,  pi.  9 ;  2  Vern. 
105 ;  7  Ves.  7G  ;  Whorwood  v.  University  Coll.  I  Ves.  5:37  ;  De  Garein  r. 
Lawson,  4  Ves.  433,  n. ;  Gates  v.  Jones,  2  Vern.  206 ;  Snioot  v.  Prujean, 
6  Ves.  560;  Adams  v.  Lambert,  4  Co.  529;  Att'y-Gen.  v.  Fishmongers' 
Co.  2  Beav.  151 ;  5  My.  &  Cr.  11 ;  Crofts  v.  Evetts,  Mo.  784;  Att'y-Gen. 
V.  Power,  1  Ball  &  B.  145 ;  Cary  v.  Abbott,  7  Ves.  490 ;  Att'y-Gen.  v. 
Todd,  1  Keen,  803;  l)es  Tliemmines  v.  De  Bonneval,  5  Riiss.  288;  Briirgs 
V.  Hartley,  14  Jur.  683  ;  Da  Costa  v.  De  Pas,  2  Swans.  487-490 ;  1  Amb. 
288;  1  Dick.  258;  Isaac  v.  Gorapertz,  7  Ves.  61;  Re.x  i;.  Partington,  1 
Salk.  162,  334  ;  Att'y-Gen.  v.  Vint,  3  De  G.  &  Sm.  704. 

2  Cary  v.  Abbott,  7  Ves.  490. 


330  ■  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXTII. 

§  719.  There  is  another  large  class  of  cases  to  which  the 
same  observations  apply.  Many  of  the  cases  heretofore  cited 
were  gifts  to  charity  generally,  or  to  religion,  or  to  education, 
without  indicating  when,  where,  or  how  the  gifts  were  to  be 
applied  or  used,  and  without  the  appointment  of  a  trustee  or 
other  person  to  select  the  objects,  or  appropriate  and  apply  the 
funds.  Gifts  have  been  made  to  such  charitable  purposes  as 
should  be  named  thereafter,  and  none  were  named ;  or  to  such 
uses  as  should  be  directed  in  a  codicil  or  note  in  writing,  and 
there  was  no  codicil  or  note  in  writing ;  or  to  such  school  as 
should  be  appointed,  and  none  was  appointed.^  In  these  and 
similar  cases,  it  was  assumed  that  the  testator  had  impressed 
upon  the  fund  a  general  charitable  purpose  for  ever ;  that  the 
fund  should  not  go  to  the  heir,  or  next  of  kin  ;  and  that  the 
king  should  interpose  his  prerogative,  and  by  his  sign-manual 
appoint  the  use,  charity,  or  school,  and  the  manner  in  which 
the  fund  should  be  expended.  The  chancellor  exercised  this 
power  of  the  king,  and  many  instances  of  its  exercise  are  in 
the  books.2  It  is  plain  that  to  divide  a  fund,  left  to  charity 
generally,  among  several  asylums,  hospitals,  and  alms-giving 
institutions,  is  not  a  judicial  act  at  all :  it  is  a  mere  ministerial 
act,  to  be  regulated  by  no  rules  of  law,  but  to  be  governed  by 
the  good  sense  and  sound  discretion  of  the  person  who  makes 
the  division  or  distribution.  There  is  a  wide  distinction  be- 
tween a  gift  to  charity,  and  a  gift  to  a  trustee  to  be  by  him 
applied  to  charity.^     In  the  first  case,  the  court  has  only  to  give 

1  Mills  V.  Farmer,  1  Mer.  55 ;  Moggridge  v.  Thackwell,  7  Ves.  36 ; 
Att'y-Gen.  v.  Syderfin,  1  Vern.  224;  2  Freein.  261;  Att'y-Gen.  v.  Jackson, 
11  Ves.  365;  White  v.  White,  1  Bro.  Ch.  12. 

*  Moggridge  v.  Thackwell,  7  Ves.  75;  Att'y-Gen.  v.  Syderfin,  1  Vern. 
224;  AttV-Gen.  v.  Mathews,  2  Lev.  167  ;  Finch,  245  ;  Paice  v.  Archbishop  of 
Canterbury,  14  Ves.  .372 ;  Clifford  v.  Franers,  Freeni.  330. 

'  In  Brown  v.  Yeall,  7  Ves.  50,  the  gift  was  for  purchasing  and  dis- 
tributing such  books  as  may  have  a  tendency  to  promote  the  interest  of 
virtue  and  religion  and  the  happiness  of  mankind ;  this  charitable  purpose 
to  be  carried  into  effect  under  such  persons  and  according  to  such  regula- 


§  719.]  JUDICIAL   AND   PREROGATIVE    POWERS.  331 

the  fund  to  charitable  institutions,  which  is  a  ministerial  or 
prerogative  act ;  in  the  second  case,  the  court  has  jurisdiction 
over  the  trustee,  as  it  has  over  all  trustees,  to  see  that  he  does 
not  commit  a  breach  of  his  trust,  or  apply  the  funds  in  bad 
faith,  or  to  purposes  that  are  not  charitable.  In  the  cases  here 
supposed,  if  the  crown  or  the  chancellor  directs  a  fund  given 
to  charity  generally,  and  without  the  interposition  of  a  trustee, 
to  be  divided  or  distributed  to  several  institutions,  there  would 
seem  to  be  no  room  for  the  doctrine  called  ct/  pres  as  a  judicial 
doctrine ;  for  such  a  distribution  is  a  mere  arbitrary  act,  and 
can,  in  the  nature  of  things,  be  governed  by  no  general  rules 
of  law.  The  courts  in  America  have  generally  declined,  in 
the  absence  of  legislative  authority,  to  administer  these  indefi- 
nite gifts  to  charity  or  religion  or  education  or  public  utility, 
unless  there  was  a  trustee  appointed  by  the  testator  to  exercise 
his  discretion  in  applying  the  gift  to  particular  objects  or  per- 
sons.^ 

tions  as  the  High  Coui-t  of  Chancery  should  decree  or  order.  Lord  Thurlow, 
armed  with  the  prero<i;itive  power  of  the  king,  declined  to  carry  out  this 
charity.  It  will  be  observed  that  the  chancellor  had  the  duty,  by  this  will, 
of  appointing  trustees  or  other  agents  to  carry  out  these  purposes,  and  also 
of  designating,  by  decree,  such  books  as  would  promote  the  interest  of 
virtue,  religion,  and  the  happiness  of  mankind.  But  if  Mr.  Bradley  had 
given  his  money  to  a  trustee  with  direction  to  him  to  purchase  and  distribute 
such  books  as  are  al)Ove  named,  the  trustee  might  have  been  compelled  to 
execute  the  trust  in  good  faith,  and  according  to  a  sound  discretion  within 
the  meaning  of  the  will. 

^  In  2  Iledf.  on  Wills,  p.  518,  2d  ed.,  it  is  said,  that  "  the  distinction  in 
England  between  a  class  of  cases  administered  in  the  Court  of  Chancery  by 
its  ordinary  powers,  and  that  where  the  administration  is  referred  by  the 
king,  as  parens  patrice,  to  the  chancellor,  by  virtue  of  the  sign-manual,  is 
not  important  in  this  country,  since  both  classes  of  cases  are  here  adminis- 
tered by  the  courts  of  chancery,  under  tlieir  ordinary  jurisdiction,  wherever 
a  jurisdiction  for  the  administration  of  charitable  bequests  has  been  created 
in  equity  either  by  express  statute  or  by  the  adoption  of  the  principles  of 
the  statute  of  Elizabeth."  With  due  deference  to  so  eminent,  learned,  and 
authoritative  a  jurist  and  writer,  the  proposition  is  respectfully  denied.  In 
all  the  cases,  the  courts  have  shown  a  most  anxious  solicitude  to  exercise 
only  the  ordinary  powers  of  chancery  jin-isdiction,  and  not  to  trench  upon 
any  extraordinary  or  prerogative  powers,  in  order  that  the  governments  of 


332  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

§  720,  If  a  testator  makes  a  bequest  to  trustees  to  be  em- 
ployed by  tliem  in  charity,  or  to  be  distributed  among  such 
charitable  institutions  as  they  shall  select,  or  to  educate 
orphans  to  be  selected  by  them,  or  generally  to  be  devoted  to 
such  charities  or  purposes  of  education,  religion,  or  morality 
as  they  in  their  judgment  shall  judge  best,  and  the  trustees 
have  the  funds  in  their  possession,  and  are  willing  to  act, 
courts  can  and  will  sustain  the  charities,  and  direct  the  trustees 
to  carry  out  the  will  of  the  testator  and  exercise  the  powers 
confided  to  them.^  Thus  in  Saltonstall  v.  Sanders,^  where  a 
testator  bequeathed  the  residue  of  his  estate  to  his  executors 
in  trust  to  hold  and  invest  the  same,  and  to  appropriate  the 
whole  of  the  principal  or  income  as  they  might  think  proper,  in 
the  furtherance  and  promotion  of  the  cause  of  piety  and  good 
morals,  or  in  aid  of  objects  and  purposes  of  benevolence  or 
charity,  public  or  private,  or  temperance,  or  for  the  education 
of  deserving  youths  ;  and  gave  the  trustees,  their  survivors  and 
successors,  full  power,  discretion,  and  authority  to  expend  the 
income  or  capital  in  such  manner  as  in  their  judgment  would 
best  promote  the  objects  named  ;  and  the  trustees  were  in  pos- 
session of  the  property,  and  were  willing  to  perform  the  trust, 

the  several  States  may  continue  in  practice,  as  they  are  in  theory,  govern- 
ments of  laws  and  not  of  men.  It  is  true  that  our  courts  have  made  mis- 
takes in  tracing  the  line  between  ordinary  jurisdiction  and  prerogative 
power,  and  in  some  cases  they  have  declined  to  carry  into  effect  trusts, 
which  they  might  well  have  administered  in  the  ordinary  exercise  of  judicial 
powers,  for  fear  of  exceeding  their  jurisdiction ;  as  in  White  v.  Fisk,  22 
Conn.  31.  And  again,  they  have  occasionally  stepped  over  the  line,  as 
where  they  have  upheld  an  indefinite  charity  to  the  poor,  no  trustee  being 
interposed.  But  generally,  American  courts  have  erred  in  not  going  so  far 
as  they  might  have  gone  in  the  exercise  of  their  ordinary  judicial  powers. 
See  this  matter  fully  and  ably  discussed  by  Mr  Justice  Gray  in  Jackson  v. 
Phillips,  U  Allen,  576. 

1  Everett  v.  Carr,  59  Me.  334 ;  Miller  v.  Atkinson,  63  N.  C.  537 ;  Gib- 
son V.  McCall,  1  Rich.  L.  174;  Derby  v.  Derby,  4  R.  I.  4U;  Going  v. 
Emery,  16  Pick.  107 ;  Wells  v.  Doane,  3  Gray,  201 ;  Att'y-Gen.  v.  Pearce, 
2  Atk.  87  ;  Mitford  v.  Reynolds,  1  Phil.  185 ;  Nightingale  v.  Goulbourn,  5 
Hare,  484;  2  Phil.  594;  Treat's  App.  30  Conn.  113. 

^  Saltonstall  v.  Sanders,  11  Allen,  446. 


§§  720,  721.]       POWER   OF   SELECTION    IN   TRUSTEES.  333 

if  competent  and  legal  for  them  to  do  so,  —  the  court  estab- 
lished the  trust ;  and  this  seems  to  be  the  law  as  established 
by  the  authorities.  In  White  v.  Fisk  ^  the  bequest  was,  "  Any 
surplus  income  I  direct  my  trustees  to  expend  for  the  support 
of  indigent  pious  young  men,  preparing  for  the  ministry  in 
New  Haven,"  and  the  court  declared  that  they  had  no  power 
to  execute  the  trust,  or  to  make  a  selection  of  the  young  men 
to  be  supported  and  educated.  It  does  not  appear  in  this  case 
whether  the  trustees  were  willing  to  perform  the  duties  imposed 
upon  them  by  the  will ;  but  if  the  trustees  were  willing  to 
accept  and  execute  the  trust,  there  was  no  extraordinary  juris- 
diction for  the  court  to  exercise,  and  the  trust  might  well 
have  been  upheld.  The  court  was  merely  required  to  see  that 
the  trustees  executed  the  powers  within  the  true  meaning  and 
scope  of  the  will,  and  if  there  was  a  breach  of  trust,  to  deal 
with  it  as  they  would  with  any  other  breach  of  trust.  It  may 
be  said  that  it  would  be  difficult  to  establish  a  breach  of  trust 
because  of  its  uncertainty ;  but  certainly  it  would  not  be  diffi- 
cult to  determine  whether  the  money  was  expended  by  the 
trustees  in  the  support  and  education  of  young  men  studying 
for  the  ministry  in  New  Haven. ^  If  the  trustees  named  had 
died  before  the  testator,  or  refused  to  act,  another  question 
would  have  arisen  which  was  not  discussed  in  the  case. 

§  721.  If  a  testator  gives  an  estate  to  trustees  to  be  applied 
to  charity  generally,  or  to  such  charitable  purposes  and  institu- 
tions as  they  in  their  discretion  sliall  judge  best,  and  the 
trustees  die  before  the  testator,  or  make  no  selection  of  the 
objects  or  application  of  the  fund,  or  decline  to  act,  the  court 
will  be  governed  by  the  intent  of  the  donor,  to  be  gathered 

'  White  V.  Fisk,  22  Conn.  31.  Perhaps  this  case  is  modified  by  Treat's 
App.  30  Conn.  113,  where  quite  as  indefinite  a  power  of  selection  was  given 
to  trustees,  and  the  trust  was  upheld.  And  see  Norris  v.  Thompson,  4  Green, 
Ch.  307. 

*  Pulpress  V.  African  Church,  48  Tenn.  St.  204. 


834  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

from  the  interpretation  of  the  whole  instrument,  in  determining 
tlie  question  whether  they  can  apppoint  new  trustees  to  exercise 
the  power  and  discretion  given  to  the  trustees  named  in  the 
wilL^  Thus  in  Lorings  v.  Marsh,^  it  was  held  that  the  discre- 
tion and  power,  given  to  the  trustees  named  in  the  will,  did 
not  create  a  personal  trust  and  confidence  in  them,  because 
power  and  discretion  were  given  to  them  and  their  successors. 
In  Fontain  v.  Ravenel,  the  court  held  the  power  and  discretion 
in  the  trustees,  named  in  the  will,  to  distribute  the  fund  among 
charitable  institutions,  as  they  should  think  best,  to  be  a  per- 
sonal trust  and  confidence  in  them,  and,  as  they  had  died 
before  the  power  could  be  executed,  no  others  could  execute 
it.  As  the  trust  was  too  indefinite  to  be  executed  by  the 
court  in  its  judicial  capacity,  and  without  calling  in  the  aid  of 
a  prerogative  power,  it  failed,  and  the  fund  went  to  the  next  of 
kin.  This  is,  without  question,  the  general  law  in  relation  to 
private  trusts  ;  and  if  this  construction,  applied  to  bequests  for 
charitable  uses,  carries  out  the  true  intent  of  the  donor,  it  is 
the  best  rule  to  follow.  In  applying  such  a  rule  to  charitable 
gifts,  courts  would  undoubtedly  consider  that  the  testator  in- 
tended to  make  an  effectual  disposition  of  his  property  for  the 
general  purposes  named,  and  that  he  intended  the  power  to  be 
exercised  when  the  occasion  arose,  and  not  before.  Thus,  in 
the  case  of  Fontain  v.  Ravenel,^  the  power  was  not  to  be  exer- 
cised until  the  death  of  the  testator's  wife,  and  it  is  hardly  to 
be  supposed  that  the  testator  intended  that  the  charitable  pur- 
poses of  his  will  should  be  defeated,  if  his  wife  happened  to 

1  Att'y-Gen.  v.  Fletcher,  5  L.  J.  (n.  s.)  Ch.  75;  AttV-Gen.  v.  Boultbee, 
2  Ves.  Jr.  380;  3  Ves.  220;  Att>Gen.  v.  Glegg,  1  Atk.  356. 

2  Lorings  v.  Marsh,  2  ClifFord,  469 ;  6  Wallace,  337 ;  Marsh  v.  Renton, 
9  Allen,  132;  Att'y-Gen.  v.  Gladstone,  13  Sim.  7;  Reeve  v.  Att'y-Gen.  3 
Hare,  191 ;  Att'y-Gen.  v.  Glegg,  1  Atk.  356. 

3  Fontain  v.  Ravenel,  17  How.  382;  Zeisweiss  v.  James,  63  Penn.  St. 
425;  Att'y-Gen.  v.  Doyley,  4  Vin.  485;  2  Eq.  Ca.  Ab.  194;  7  Ves.  58,  n. ; 
16  Ves.  47;  Hibbard  u.  Lambe,  Amb.  309;  Cole  v.  Wade,  16  Ves.  45; 
Eaton  V.  Smith,  2  Beav.  236  ;  Hill  on  Trustees,  211. 


§§  721,  722.]       WHERE  THE  GIFT  IS  FOR  A  SINGLE  PURPOSE.       335 

outlive  his  other  trustees,  a  contingency  which  the  court  thought 
was  unprovided  for.  On  the  contrary,  it  is  not  a  violent  con- 
struction to  presume  that  the  testator  intended  the  power  to 
be  executed  by  the  trustees  in  possession  of  the  fund  at  the 
time  the  power  could  first  be  exercised,  although  the  power 
did  not  in  terms  extend  to  them.  Again,  there  are  classes  of 
indefinite  trusts  where  the  trustees  must  exercise  a  continuing 
power  and  discretion  in  the  selection  of  objects  of  the  charity. 
Successors  to  the  trustees  appointed  in  the  will,  though  not 
named,  would  have  the  right  to  exercise  the  power  from  the 
clear  intent  of  the  testator.^ 

§  722.  If  a  donor  makes  a  gift  in  trust  for  a  particular  chari- 
table purpose,  as  to  establish  a  particular  school,  hospital,  asy- 
lum, or  other  charitable  institution,  and  appoints  no  trustee ; 
or  the  trustee  appointed  by  him  is  incapable  of  taking  the  gift, 
and  of  acting  in  that  behalf;  or  if  the  trustee  dies  before  the 
testator,  or  declines  to  act ;  or  if  trustees  are  named  or  appointed 
who  are  not  m  esse,  but  are  to  come  into  existence  thereafter, 
as  by  an  act  of  incorporation,  —  courts  of  equity,  in  the  exer- 
cise of  their  ordinary  jurisdiction,  can  establish  the  charity  ; 
for  it  is  their  invariable  practice  not  to  allow  a  legal  and  valid 
trust  to  fail  for  want  of  a  trustee.  Therefore  courts  will  appoint 
trustees  in  such  cases  to  take  up  and  carry  out  the  clear  pur- 
poses of  the  donor,  and  they  will  order  the  heir  or  legal  repre- 
sentatives to  hold  the  fund  upon  the  declared  trust,  until 
trustees  can  be  appointed  to  execute  the  trust  as  contemplated.^ 
In  exercising  this  jurisdiction,  courts  are  called  upon  to  exercise 
no  extraordinary  or  prerogative  powers.'"^  In  the  matters  thus 
far  discussed  in  the  four  preceding  sections,  there  is  no  room 

^  See  Moore  v.  Moore,  4  Dana,  3GG  ;  Down  v.  Worrall,  1  My.  &  K. 
561;  Green  v.  Allen,  5  Humph.  170;  Grilfin  v.  Graham,  1  Hawks,  DG ; 
Williams  v.  Pearson,  38  Ala.  21)1). 

*  Reeve  v.  Att'y-Gen.  3  Hare,  191  ;  Inglis  v.  Sailors'  Snug  Harbor,  3 
Peters,  99;  Hayter  v.  Trego,  5  Russ.  113;  Denyer  v.  Druce,  Taml.  32. 

=■  Williams  v.  Pearson,  38  Ala.  299. 


336  TRUSTS    FOR   CHARITABLE    USES.         [CHAP.  XXIII. 

for  tlie  cy  pres  doctrine,  as  it  is  called,  as  a  judicial  doctrine. 
So  far  as  courts  have  sustained  charities,  as  courts,  they  have 
sustained  them  within  the  strict  limits  of  ordinary  chancery 
jurisdiction.  Where  illegal  or  indefinite  charities,  without 
trustees  with  powers  to  determine  the  definite  purposes,  have 
been  sustained  and  carried  into  effect  cy  pres,  it  has  been  done 
by  the  sovereign  power  as  an  act  of  prerogative  and  grace. 
Lord  Eldon  expressed  the  rule  wlien  lie  said :  "  I  have  con- 
versed with  many  persons  upon  it.  I  have  had  great  difficulty 
in  my  own  mind,  and  have  found  great  difficulty  in  the  mind 
of  every  person  I  have  consulted ;  but  the  general  principle 
thought  most  reconcilable  to  the  cases  is,  that  where  there  is  a 
general  indefinite  purpose,  not  fixing  itself  upon  any  object, 
the  disposition  is  in  the  king  by  sign-manual  ;  but  where  the 
execution  is  to  be  by  a  trustee  with  general  or  some  objects 
pointed  out,  then  the  court  will  take  the  administration  of  the 
trust."! 

§  723.  But  there  are  cases  in  which  courts,  in  the  strict  dis- 
charge of  their  judicial  duty,  may  well  apply  a  fund  devoted  to 
a  particular  charity  to  a  cognate  purpose,  to  prevent  a  failure 
of  justice,  and  to  protect  trustees  in  applying  moneys  in  their 
hands  to  some  useful  purposes.  Thus  where  there  was  a 
bequest  to  trustees  to  apply  part  of  a  fund  to  the  redemption  of 
British  slaves  in  Turkey  and  Barbary  ;  and,  after  a  time,  there 
ceased  to  be  British  slaves  to  redeem  ;  and  the  fund  had  accu- 
mulated for  many  years  ;  the  court  directed  the  trustees  to 
apply  the  income  to  kindred  charities,  as  nearly  alike  the  orig- 
inal purpose  as  possible.  The  court  indicated  what  was  the 
probable  cy  pres  purpose  of  the  testator  in  case  of  the  failure 
of  his  original  purpose.^     Cy  pres,  as  applied  to  judicial  acts, 

^  Moggridge  v.  Tbackwell,  7  Ves.  86;  Paice  v.  Canterbury,  14  Ves.  372; 
Boyle,  241  ;  Everett  v.  Carr,  59  Me.  334. 

2  AttV-Gen.  v.  Ironmongers'  Co.  2  Beav.  313 ;  1  Cr.  &  Pliil.  508 ;  10 
CI.  &  Fin.  908. 


§§  722-724.]     CY  PRES  a  rule  of  construction.  337 

is  a  rule  of  construction  and  not  of  administration.     The  judg- 
ment of  the  court,  in  this  last  case,  may  be  sustained   as  a 
judicial  act,  on  the  ground  that  the  court  construed  such  an 
application  of  the  funds,  upon  the  failure  of  the  first  purpose, 
to  be  within  the  probable  intention  of  the  donor.     To  say  that 
a  donor  had  no  intention,  under  such  circumstances,  is  to  beg 
the  question  to  be  determined  by  construing  the  written  instru- 
ment;  for  Lord  Brougham  has  very  forcibly  said,  that,  if  the 
construction  shows  that  the  fund  was  to  be  employed  in  the 
way  pointed  out  for  ever,  and  in  no  other  tcay}  then  all  cy  jn-cs 
construction  must  fail.     And  so  it  may  be  said,  that,  if  the  con- 
struction of  the  \vritten  instrument  bears  out  the  assertion  that 
the  donor  had  no  intention,  in  case  of  the  failure  of  his  first 
purpose,  the  charity  must  fail  on  the  failure  of  ol)jects  to  winch 
to  apply  it.     In  giving  a  construction  to  an  instrument  under 
such  circumstances,  courts  consider  the  whole  instrument  in 
the  light  of  all  the  circumstances,  and  conclude,  from  the  will 
and  all  the  facts,  what  was  the  probable  intention  of  the  tes- 
tator.    As  in  construing  a  deed  under  doubtful  circumstances, 
it  is  construed  most  strongly  against  the  grantor,  and  most 
favorably  for  the  grantee,  so  courts  lean  to  a  construction  in 
favor  of  charity,  rather  than  against  it.     It  may  be  said  with 
truth,  that  the  presum})tion  of  an  intention  in  the  donor  is 
very  slight ;  but  the  presumption  on  which  action  is  based  in 
many  human    affairs    is  very   slight ;    and  if    the   conclusion 
arrived  at  is  unsatisfactory,  it  must  be  remembered  that  the 
construction  of  any  written   instrument  many  years  after  its 
date,  and  amid   an  entirely  new  order  of  things,  and   when 
many  unexpected  events  have  occurred,  is  always  unsatisfac- 
tory, and  the  result  arrived  at  is  at  best  but  a  probal)le  one.- 

§  724.  So  where  bequests  were  made  to  trustees  to  be  ex- 
pended in  the  circulation  of  books,  newspapers,  tiic  delivery 

^  Att'y-Gen.  v.  Ironmongers'  Co.  2  My.  &  K.  57G. 
*  Sec  Popkin  v.  Sargent,  10  Cush.  327. 
VOL.  II.  22 


338  TRUSTS    FOR    CHARITABLE   USES,  [CHAP.  XXIII. 

of  speeches,  lectures,  and  sucli  other  means  as  in  their  judg- 
ment will  create  a  public  sentiment  that  will  put  an  end  to 
negro  slavery  in  the  United  States,  and  for  the  benefit  of  fugi- 
tive slaves  escaping  from  the  slave-holding  States  ;  ^  and  after- 
wards slavery  was  abolished,  so  that  there  could  be  no  objects 
as  specially  designated  in  the  will  to  which  the  charity  could 
attach,  the  court,  in  construing  the  whole  will,  determined 
that  it  was  the  intention  of  the  testator  to  establish  a  perma- 
nent charity  for  the  benefit  of  the  colored  race,  and  that  it 
was  his  intention,  in  case  the  special  purposes  named  in  the 
will  should  fail,  that  the  funds  should  be  applied  to  the  near- 
est similar  use.  The  court,  in  making  this  decision,  disclaims 
the  exercise  of  any  prerogative  power,  and  it  founds  its  judg- 
ment upon  the  ordinary  right  and  duty  of  courts  to  construe 
written  instruments,  and  to  carry  the  intention  of  parties  to 
written  instruments  into  effect  when  such  intention  can  be 
discovered  with  reasonable  probability.  There  can  be  no  dis- 
pute as  to  the  duty  of  the  court  to  construe  written  instru- 
ments in  order  to  ascertain  the  intention  of  the  parties  thereto, 
and  there  can  be  no  question  that  it  is  the  duty  of  courts  to 
carry  such  intention  into  effect  as  near  as  may  be  when  it  can 
be  done  consistently  with  the  law  of  the  land.  If,  therefore,  the 
purposes  of  a  charity  named  in  a  will  fail,  and  there  are  no  objects 
to  which  to  apply  the  funds,  the  court  must  read  the  whole 
will  in  order  to  determine  whether  the  charitable  intention  of 
the  testator  has  come  to  an  end,  and  the  fund  must  revert  to 
the  heir  or  personal  representative  ;  or  whether  a  probable 
intention  can  be  gathered  from  the  instrument,  that,  in  the 

^  Jackson  v.  Phillips,  14  Allen,  5o9.  In  this  case,  the  only  question  (it 
being  established  that  it  was  a  good  charity)  was  whether,  the  purpose  of 
the  testator  being  accomplished  by  the  abolition  of  slavery,  he  intended  that 
the  fund,  if  any  thing  remained,  should  revert  to  his  heirs.  It  is  quite  plain 
that  he  did  not  expect  his  purpose  would  be  accomplished  so  soon,  or  till 
long  after  his  gift  was  exhausted,  as  he  provided  for  other  gifts  to  be  added 
to  his  own,  and  so  far,  it  is  plain  that  he  did  not  contemplate  or  intend  that 
his  heirs  should  take  any  part  of  his  gift. 


§  724.]        CY  PRES  A  RULE  OF  CONSTRUCTION.         339 

event  wliicli  has  happened,  the  donor  intended  that  his  gift 
should  be  applied  ey  'pre>i  the  original  purpose.^ 

1  Att'y-Gen.  v.  Pyle,  1  Atk.  435;  Att'y-Gen.  v.  Vint,  3  De  G.  &  Sm. 
705;  Att'y-Gen.  v.  Lawes,  8  Hare,  32;  Att'y-Gen.  v.  Green,  2  Bro.  Ch. 
492;  Moggridge  v.  Thackwell,  3  Bro.  Ch.  617;  1  Ves.  Jr.  464;  Att'y-Gen. 
V.  Whitchurch,  3  Ves.  143;  Att'y-Gen.  v.  Guise,  2  Vern.  166;  Att'y-Gen. 
r.  Baliol  Coll.  9  Mod.  407;  Att'y-Gen.  v.  Glasgow  Coll.  2  Coll'  665; 
1  H.  L.  Ca.  800. 

The  cases,  both  in  England  and  th's  country,  wherein  the  doctrine  of 
cy  pj'hs,  in  its  several  aspects,  is  considered  and  applied,  are  collected  and 
explained  by  Mr.  Justice  Gray  in  his  very  elaborate  opinion  in  Jackson  v. 
Phillips,  14  Allen,  574-694,  an  abstract  of  which  is  here  given. 

In  England,  there  are  two  distinct  powers  exercised  by  the  chancellor  in 
charity  cases,  under  this  doctrine  of  cy  pi-es,  —  the  one  derived  from  the 
royal  prerogative,  the  other  in  the  exercise  of  judicial  authority.  The  dis- 
position of  a  charity  under  the  royal  prerogative  finds  no  counterpart  in  this 
country.  The  English  cases  under  this  head  may  be  divided  into  two 
classes  :  (I.)  Bequests  to  uses  charitable,  but  illegal,  as  to  a  form  of  religion 
not  tolerated.  Ati'y-Gen.  v.  Baxter,  1  Vern.  248 ;  2  Vern.  105;  1  Eq.  Ca.  Ab. 
96  ;  7  Ves.  76;  Da  Costa  v.  De  Pas,  Amb.  228 ;  2  Swanst.  489,  note ;  1  Dick. 
258;  Rex  v.  Partington,  2  Salk.  162.  See  4  Dane,  Ab.  239;  Gass  v. 
Wilhite,  2  Dana,  176  ;  Methodist  Church  v.  Remington,  1  Watts,  226.  and 
comments  of  Lord  Thurlow  in  Moggridge  v.  Thackwell,  1  Ves.  Jr.  469, 
and  of  Sir  Wm.  Grant  in  Gary  v.  Abbott,  7  Ves.  494.  (2.)  Gifts  to  charity 
generally,  with  no  trustee  interposed,  and  no  appointment  provided  for,  or 
the  power  of  appointment  delegated  to  a  person  who  dies  without  exercising 
it.  Boyle  on  Char.  238;  Att'y-Gen.  v.  Syderfin,  1  Vern.  224;  1  Eq.  Ca. 
Ab.  96;  Att'y-Gen.  v.  Fletcher,  5  L.,J.  (n.  s.)  Ch.  75.  See  Moggridge  v. 
Thackwell,  sup. ;  Dwight's  Argument  in  Rose  Will  Case,  272.  This  power 
exercised  by  the  English  courts,  does  not  exist  in  any  court  in  this  country  ; 
4  Kent,  508,  note ;  Fontain  v.  Ravenel,  17  How.  369,  384 ;  Moore  v.  Moore, 

4  Dana,  365 ;  Whitman  v.  Lex,  17  S.  &  R.  93 ;  Att'y-Gen.  v.  Jolly,  1  Rich. 
Eq.  108 ;  Dickson  v.  Montgomery,  1  Swan,  348  ;   I.,e  Page  v.  MacNamara, 

5  Iowa,  146  ;  Bartlett  v.  King,  12   Mass.  545 ;   Sohier  v.  Mass.  Gen.  Hosp. 
3  Cush.  496. 

But  the  application  of  the  cy  pres  doclrine,  in  the  exercise  of  a  general 
equity  jurisdiction,  stands  upon  very  different  grounds,  and  is  favored  in 
this  country,  as  well  as  in  England.  It  existed  prior  to  the  Stat,  of  43 
Eliz.  Symm's  Case,  Duke,  l(i3  ;  Reade  v.  Silles,  Acta  Cane.  559  ;  1  Spence. 
Eq.  588,  note;  Parker  v.  Brown,  1  Col.  Pr.  Ch.  81  ;  1  My.  &  K.  389; 
Dwight's  Cha.  Ca.  33;  Parrot  r.  Pawlett,  Cary,  47  ;  Elmer  v.  Scott,  Choice 
Ca.  Ch.  155;  Matthew  v.  iSLirow,  and  Ilensman  v.  Hackney,  Dwight's  Cha. 
Ca.  65,  77  ;  Tudor,  102,  103.  For  authorities  on  this  point  in  this  country, 
see  Vidal  v.  Girard,  2  How.  194-19(),  and  cases  cited;  Perrin  v,  Carey,  24 


340  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

§  725.  "Where  a  fund  was  given  to  found  a  school  for  the 
education  of  the  poor  within  a  certain  district,  and  by  an  act 

How.  501 ;  Magill  v.  Brown,  Brightly,  346 ;  2  Kent,  286-288,  and  note ; 
Burbank  v.  Whitney,  24  Pick.  152 ;  Preachers'  Aid  Soc.  v.  Rich,  45  Me. 
559;  Derby  v.  Derby,  4  R.  I.  436;  Urmey  v.  Wooden,  1  Ohio  St.  160; 
Chambers  v.  St.  Louis,  29  Mo.  543. 

The  discretion  of  the  chancellor  to  depart  from  the  express  intent  of  the 
founder  of  a  charity  was  not  enlarged,  but  was  intended  rather  to  be  limited, 
by  Stat,  of  43  Eliz.  See  statute,  ante,  §  692;  also  Lord  Coke,  2  Inst.  712, 
and  Duke,  11,  156,  169,  372,  619;  Lord  Eldon  in  Att'y-Gen.  v.  Brown,  1 
Swanst.  291 ;  1  Wils.  Ch.  354  ;  Lord  Redesdale  in  Att'y-Gen  v.  Mayor  of  Dub- 
lin, 1  Bligh,  N.  R.  347,  and  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh, 
N.  R.  48,  62 ;  Lord  Keeper  Bridgman  in  Att'y-Gen.  v.  Newman,  1  Ch.  Ca. 
158  ;  Sir  Joseph  Jekyll,  in  Eyre  v.  Shaftesbury,  2  P.  Wms.  119  ;  Lord  Hard- 
wicke,  in  AttV-Gen.  v.  Middleton,  2  Ves.  Sen.  328;  AttVGen.  v.  Carroll, 
Acta  Cane.  729  ;  Dwight's  Arguuient,  259-268  ;  Tudor,  161,  162.  Li  Massa- 
chusetts, Going  V.  Emery,  16  Pick.  119;  County  Attorney  v.  May,  5  Cush. 
338 ;  Gen.  Stat.  c.  14,  §  20. 

A  bequest  to  trustees  for  a  charitable  purpose,  pointed  out,  lawful  and 
valid  at  the  testator's  death,  and  no  intention  expressed  to  limit  it  to  a  par- 
ticular institution  or  mode  of  application,  and  afterwards  the  scheme  becomes 
impracticable  or  illegal,  the  lund,  having  once  vested  as  a  charit}',  is  to  be 
applied  by  a  court  of  chancery,  in  tlie  exercise  of  its  jurisdiction  in  equity, 
as  near  the  testator's  particular  intention  —  cypres  —  as  possible.  Att'y- 
Gen.  V.  Warrick,  Dwight's  Cha.  Ca.  140;  West,  Ch.  60,  62;  Bloomfield  v. 
Stowe  Market,  Duke,  644;  Atty-Gen.  r.  Guise,  2  Vern.  166;  Att"y-Gen. 
V.  Baliol  College,  9  Mod.  407;  Att'y-Gen.  v.  Glasgow  College,  2  Coll.  665- 
674;  1  H.  L.  Ca.  800-826;  2  Vern.  267,  note;  3  Ves.  650,  note;  Att'y- 
Gen.  V.  Hicks,  Highmore  on  Mortmain,  336-354;  3  Bro.  Ch.  166,  note; 
Att'y-Gen.  v.  Craven,  21  Beav.  392,  408;  Att'y-Gen.  v.  Pyle,  1  Atk.  435; 
Att'y-Gen.   v.  Green,  2   Bro.  Ch.  492 ;  Att'y-Gen.   v.  Bishop  of  London, 

3  Bro.  Ch.  171 ;  Moggridge  v.  Thackwell,  3  Bro.  Ch.  517 ;  1  Ves.  Jr.  464; 
Att'y-Gen.  v.  Glyn,  12  Sim.  84;  Att'y-Gen.  v.  Lawes,  8  Hare,  32;  AttV- 
Gen. V.  Vint,  3  De  G.  &  Sm.  705 ;  Att'y-Gen.  v.  Boultbee,  2  Ves.  Jr.  387  ; 
Att'y-Gen.  v.  Whitchurch,  3  Ves.  143 ;  Att'y-Gen.  v.  MinshuU,  4  Ves.  14. 
Lord  Eldon  held  a  gift  to  a  person,  in  trust  for  such  charitable  purposes  as 
he  should  appoint,  to  be  good.  Moggridge  v.  Thackwell,  7  Ves.  36 ;  13 
Ves.  416  ;  Paice  v.  Archbishop  of  Canterbury,  14  Ves.  364;  Mills  v.  Farmer, 
19  Ves.  483 ;  1  Mer.  55.  The  American  cases  on  this  point  are  Weils  v. 
Doane,  3  Gray,  201;  Fontain  v.  Ravenel,  17  How.  387;  Moore  i'.  Moore, 

4  Dana,  336;  Lorings  v.  Marsh,  6  Wallace,  337.  Where  the  charitable 
gift  never  took  effect  at  all  for  various  reasons,  see  Jones  v.  Williams,  Amb. 
651;  Att'y-Gen.  u.  Whitchurch,  3  Ves.  141;  Smith  v.  Oliver,  11  Beav. 
481 ;  Att'y-Gen.   v.  Bishop  of  Oxford,  1  Bro.  Ch.  444,  note,  cited  2  Cox, 


§  725.]        CY  PRES  A  RULE  OP  CONSTRUCTION.         341 

of  Parliament  the  whole  district  was  taken  for  a  dock,  so  that 
all  the  ol  jects  of  the  charity  as  specified  in  the  will  failed,  the 

Ch.  365;  2  Ves.  Jr.  388,  and  4  Ves.  431;  Cherry  r.  Mott,  1  My.  &  Cr. 
123 ;  Marsh  v.  Means,  3  Jur.  (n.  s.)  790. 

Cases  upon  tin's  subject  relating  to  redemption  of  captives  and  slaves, 
where  the  cajitives  atid  slaves  intended  to  be  benefited  no  longer  exist:  Bet- 
ton's  Charities ;  Atfy-Gen.  v.  Ironmongers'  Company,  3  My.  &  K.  576 ; 
2Beav.  313;  Cr.  &  Phil.  208;  10  CI.  &  Fin.  908;  Lady  Mico's  Charity, 
cited,  Att'y-Gen.  v.  Gibson,  2  Beav.  317,  note;  also,  Cr.  &  Phil.  226,  228, 
and  Jackson  v.  Phillips,  14  Allen,  539. 

There  is  no  adjudication  of  this  question  in  the  Supreme  Court  of  the 
United  States.  Bap.  Assoc,  v.  Hart's  Ex'rs,  4  Wheat.  1,  and  Wheeler  v. 
Smith,  9  How.  79,  arose  under  the  law  of  Virginia.  See  2  How.  192;  24 
How.  .oOl;  4  Met.  380;  12  Gray,  593;  2  Kent,  Com.  287.  In  Fontain  v. 
Ravenel,  17  How.  369,  the  executor  died  without  appointing  the  disposition 
of  the  charity ;  and  the  court  held  it  not  to  be  within  the  equity  jurisdiction 
of  the  court,  and  nothing  could  reach  it  but  tlie  prerogative  power,  which 
did  not  exist  in  the  court.  In  Maryland  and  Virginia,  the  Stat,  of  43  Eliz. 
has  been  expressly  repealed,  and  charities  are  treated  as  other  trusts. 
Dashiell  v.  Att'y-Gen.  5  H.  &  J.  392  ;  Gallego  v.  Att'y-Gen,  3  Leigh,  450; 
and  so  in  New  York  the  court  has  finally  decided.  Bascom  v.  Albertson, 
34  N.  Y.  584.  In  North  Carolina,  there  is  some  conflict;  but  the  view  of 
Maryland  and  Virginia  is  now  adopted.  Griflin  v.  Graham,  1  Hawks,  96; 
McAuley  r.  Wilson,  1  Dev.  Eq.  276;  Holland  v.  Peck,  2  Ired.  I':q.  2.J5. 
In  Alabama,  see  Carter  v.  Balfour,  19  Ala.  830.  On  the  other  hand,  in 
Kentucky,  the  courts  sustain  the  distinction  between  the  prerogative  power 
and  the  equity  jurisdiction.  Moore  v.  Moore,  4  Dana,  366;  Gass  i\  Wil- 
hite,  2  Dana,  177;  Curling  v.  Curling,  8  Dana,  38.  In  Pennsylvania,  the 
power  exercised  under  the  sign-manual  does  not  exist.  Methodist  Church 
V.  Reiuington,  1  Watts,  226,  and  WItman  v.  Lex,  17  S.  &  R.  93;  but  in 
Philadelphia  v.  Girard,  45  Penn.  27,  the  court  sustains  the  cy  pres  doctrine, 
when  clearly  within  the  equity  power  of  the  court.  See  Stat,  in  Penn. 
1855.  So  in  South  Carolina  and  Illinois.  Att'y-Gen.  v.  Jolly,  1  Rich.  Eq. 
99;  2  Strob.  Eq.  395;  Gilman  v.  Hamilton,  16  111.  231.  In  all  the  New 
England  States,  except  Connecticut,  the  doctrine  of  cy  pres  as  a  judicial 
power  has  been   countenanced,  or  left  an  open  question.     Burr  v.   Smith, 

7  Vt.  287;  Sec.  Cong.  Soc.  v.  First  Cong.  Soc.  14  N.  H.  330;  Brown  v. 
Concord,  3  N.  H.  296;  Derby  v.  Derby,  4  R.  L  439;  Tappan  v.  Dehlois, 
45  Me.  131;  Howard  v.  Amer.  Peace  Soc.  49  Me.  302;  Treat's  App.  30 
Conn.   113.     See  also  2  Red.  on  Wills,  815,  note;  McCord  v.  Ochiltree, 

8  Black.  15;  Beall  v.  Fox,  4  Ga.  427;  Chambers  v.  St.  Louis,  29  Mo. 
592;  Lepage  v.  McNamara,  5  Iowa,  146;  Mclntyre  v.  Zanesville,  18  Ohio 
St.  352. 

In  Massachusetts,  the  Stat,  of  43  Eliz.  has  always  been  considered  part 


342  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

court  directed  the  funds  to  be  applied  under  a  scheme  cy  pre8 
the  original  purpose,  on  the  ground  that  such  must  have  been 
the  intention  of  the  donor. ^  So  where  property  is  given  in 
trust,  and  sums  certain  are  directed  to  be  paid  out  of  the 
income  to  several  different  charitable  purposes,  and  one  of 
them  fails,  the  circumstance  that  the  donor  has  named  other 
charities  for  other  parts  of  the  income  is  a  circumstance  to 
be  used  in  the  construction  of  the  instrument,  to  determine 
whether  the  donor  intended  that,  in  case  of  the  failure  of  one 
purpose,  the  whole  fund  should  be  applied  to  the  others  ;  but 
such  circumstance,  though  of  importance,  is  not  always  con- 
trolling 2  in  the  construction.     So  where  property  is  given  in 

of  the  common  law.  4  Dane,  Ab.  6,  239;  Earle  v.  Wood,  8  Cush.  445; 
Anc.  Chart.  52;  Drury  v.  Natick,  10  Allen,  180;  Odell  v.  Odell,  10  Allen, 
1,  6;  Dexter  v.  Gardner,  7  Allen,  243;  Burbank  v.  Whitney,  24  Pick.  146; 
Bartlett  v.  Nye,  4  Met.  378 ;  Washburn  v.  Sewall,  9  Met.  280;  Univ.  Soc. 
V.  Fitch,  8  Gray,  421 ;  Wells  v.  Doane,  3  Gray,  201 ;  Saltonstall  v.  Sanders, 
11  Allen,  446,  and  Winslow  v.  Trowbridge,  therein  cited  ;  Harvard  Coll.  v. 
Soc.  for  Promoting  Theol.  Educ.  3  Gray,  28  ';  Baker  v.  Smith,  13  Met.  34; 
Trustees  of  Smith's  Char.  v.  Northampton,  10  Allen,  498  ;  Winslow  v.  Cum- 
mings,  3  Cush.  358  ;  Bliss  v.  Amer.  Bible  Soc.  2  Allen,  334 ;  Amer.  Acad.  v. 
Harvard  Coll.  12  Gray,  582.  In  this  last  case,  the  decision  was  by  Chief 
Justice  Shaw  ;  and  the  same  principle  was  recognized  or  assumed  in  4  Dane, 
Ab.  242,  243,  and  Sanderson  v.  White,  18  Pick.  333,  and  cases  cited ;  13 
Met.  41 ;  3  Gray,  282,  298;  10  Allen,  501,  502. 

There  is  a  class  of  cases  where  the  gift  is  distinctly  limited  to  particular 
persons  or  establishments,  and  upon  a  change  of  circumstances  the  doctrine 
of  cy  pres  does  not  apply.  Russell  v.  Kellett,  3  Sm.  &  Gif.  264;  Clark  v. 
Taylor,  1  Dr.  642  ;  Incorp.  Soc.  v.  Price,  1  Jon.  &  Lat.  498 ;  7  Ir.  Eq. 
260 ;  Li  re  Clergy  Soc.  2  K.  &  J.  615;  Marsh  v.  AttV-Gen.  2  J.  &  H.  61 ; 
Winslow  V.  Cummings,  3  Cush.  358  ;  Bliss  v.  Amer.  Bible  Soc.  2  Allen,  334; 
Easterbrooks  v.  Tillinghast,  5  Gray,  17  ;  Att'y-Gen.  v.  Columbine,  Boyle, 
Char.  204,  205;  Potter  v.  Thurston,  7  R.  T.  25  ;  Dexter  w.  Gardner,  7  Allen, 
243.     But  see  Venable  v.  Coffman,  2  W.  Va.  310. 

'  AttyGen.  V.  Glyn,  12  Sim.  84;  Att'y-Gen.  v.  London,  3  Bro.  Ch.  171; 
1  Ves.  Jr.  243;  Att'y-Gen.  v.  Craven.  21  Beav.  392;  AttV-Gen.  r.  Boult- 
bee,  2  Ves.  Jr.  380 ;  3  Ves.  220 ;  Atty-Gen.  v.  Hicks,  High,  on  Mort.  336- 
354 ;  In  re  St.  John's  Church,  3  Ir.  Eq.  335. 

2  Att'y-Gen.  v.  Ironmongers'  Co.  2  Beav.  313;  1  Cr.  &  Ph.  308;  3  Brq. 
Ch.  166,  n.;  10  CI.  &  Fin.  908;  Att'y-Gen.  v.  Llandaff,  2  My.  &  K.  586,  cited 
Mills  V.  Farmer,  19  Ves.  483;  Martin  v.  Margham,  14  Sim.  230;  Loscombe 


§  725.]  CY   PRES    A   RULE   OF    CONSTRUCTION.  343 

trust,  and  certain  sums  from  the  income  are  devoted  to  sep- 
arate charitable  jmrposes,  in  such  manner  as  to  exliaust  the 
whole  income  at  the  time  when  the  property  was  first  given 
to  cliarity,  and  afterwards  the  income  increases,  so  that  there 
is  a  surplus  not  appropriated  to  any  charity  named,  the  court 
must  resort  to  a  construction  of  the  instrument  to  determine 
what  use  to  make  of  the  surplus  in  accordance  with  the  prob- 
able intention  of  the  donor.  No  general  rule  can  be  laid 
down,  but  each  case  must  de{3end  upon  the  particular  instru- 
ment and  the  facts,  and  the  discretion  of  the  court.'  Thus, 
sometimes  the  money  will  be  applied  to  increase  the  number 
of  charitable  objects,  sometimes  to  increase  the  amount  to 
be  paid  to  the  objects  named,  sometimes  to  founding  new 
charities  cy  pres  the  others  named  in  the  will,  and  sometimes 
the  whole  increase  will  go  to  one  particular  object  of  the  tes- 
tator's bounty .2     In  some  cases  the  trustees  will  take  the  sur- 

V.  Winteringham,  13  Beav.  87 ;  Coldwell  v.  Home,  2  Sni.  &  Gif.  31 ;  Atty- 
Gen.  r.  Lawes,  8  Hare,  32. 

'  Att'y-Gen.  v.  Marchant,  L.  R.  3  Eq.  424. 

*  Att'y-Gen.  v.  MinshuU,  4  Ves.  11 ;  Att'y-Gen.  v.  Coopers'  Co.  19  Ves. 
187;  Ex  parte  Jortin,  7  Ves.  310;.  Att'y-Gen.  v.  Galway,  1  Beav.  298;  1 
Moll.  95;  Anon.  2  J.  &  W.  320,  cited  Att'y-Gen.  v.  Rochester,  5  De  G., 
M.  &  G.  797;  Ashton's  Cliar.  27  Beav.  115;  AttV-Gen.  v.  Ironmongers' 
Co.  10  CI.  &  Fin.  908;  Hereford  v.  Adams,  7  Ves.  324;  Wilkinson  v. 
Malin,  2  Cr.  &  Jer.  636;  Att'y-Gen.  v.  Bovill,  1  Phil.  762;  AttV-Gen.  v. 
Drapers'  Co.  2  Beav.  508 ;  Att'y-Gen.  ».  Coopers'  Co.  3  Beav.  29  ;  Thetford 
School,  8  Rep.  130 ;  Att'y-Gen.  v.  Skinners'  Co.  2  Russ.  407  ;  Mercers'  Co.  v. 
Att'y-Gen.  2  Bligh  (x.  s.),  165 ;  Att'y-Gen.  v.  Bristol,  2  J.  &  W.  294 ;  Att'y- 
Gen.  V.  South  Molton,  14  Beav.  357;  27  Eng.  L.  &  Eq.  17;  5  H.  L.  Ca.  1  ; 
Att'y-Gen.  v.  Gascoigne,  2  My.  &  K.  647  ;  Att'y-Gen.  v.  Cordwainers' Co.  3 
My.  &  K.  534;  Att'y-Gen.  v.  Master  of  Catherine  Hall,  Jacob,  381 ;  Att'y- 
Gen.  V.  Winson,  6  Jur.  (x.  s.)  833  ;  Att'y-Gen.  v.  Christ  Church,  Jacob,  474  ; 
Att'y-Gen.  v.  Wisbert,  6  Jur.  655;  Att'y-Gen.  v.  Marchant,  12  Jur.  957; 
L.  R.  3  Eq.  424;  Att'y-Gen.  v.  Trinity  Church,  9  Allen,  422;  Att'y-Gen.  v. 
Fishmongers'  Co.  2  Beav.  151;  5  My.  &  Cr.  11;  Att'y-Gcn.  r.  Guise,  2 
Vern.  166;  Atfy-Gen.  v.  Baliol  Coll.  9  Mod.  407;  AttVGen.  r.  Glasgow 
Coll.  2  Coll.  665  ;  1  H.  L.  Ca.  800;  Att'y-Gen.  v.  Di.xie,  2  My.  &  K.  342; 
Att'y-Gen.  v.  Haberdashers'  Co.  3  Russ.  530  ;  Att'y-Gen.  v.  Marchant,  L.  R. 
3  Eq.  424;  Merchant  Tailors'  Co.  v.  Att'y-Gen.  L.  R.  11  Eq.  35;  Marsh  v. 
Renton,  99  Mass.  132;  Att'y-Gen.  v.  Mayor  of  Beverly,  6  De  G.,  M.  &  G. 
256;  6  H.  L.  Ca.  310. 


344  TRUSTS    FOR    CHARITABLE    USES.  [CHAP.  XXIII. 

plus  beneficially. 1  If  a  fund  decreases  in  value,  so  that  the 
original  purposes  of  the  charity  cannot  be  accomplished,  the 
scheme  of  the  charity  may  be  changed  cy  pres? 

§  726.  It  is  further  to  be  observed,  that  if  the  object  of  the 
testator's  bounty  is  not  a  public  benefit  or  charity,  but  some 
supposed  private  benefit  to  himself  or  his  own  soul,  even  the 
prerogative  of  the  crown  will  not  be  interposed  to  apply  such 
a  gift  to  another  purpose  ;  but  the  bequest  will  fall  into  the 
residue.^  So  if  it  appears,  from  the  construction  of  the  whole 
instrument,  that  the  gift  was  for  a  particular  purpose  only, 
and  that  there  was  no  general  charitable  intention,  the  court 
cannot  by  construction  apply  the  gift  cy  pres  the  original  pur- 
pose. If,  therefore,  it  appears  that  the  testator  had  but  one 
particular  object  in  mind,  as  to  build  a  church  at  W.,  and  his 
purpose  cannot  be  carried  out,  the  gift  must  go  to  the  next 
of  kin.*  And  if  the  gift  cannot  vest  in  the  first  instance  in 
the  donees,  for  the  reason  that  no  such  donees  can  be  found, 
or  because  a  corporation  is  dissolved,  the  court  cannot  appoint 
other  donees  cy  pres.^ 

§  727.  From  this  review  of  the  law  it  appears  that  the  object 
of  all  the  rules  upon  this  subject  is  to  ascertain  and  -carry  out, 
as  nearly  as  may  be,  the  true  intention  of  the  donor.     As  thus 

1  AttyGen.  v.  Wax  Chandlers'  Co.  L.  R.  8  Eq.  452;  L.  R.  ,5  Ch.  503. 

2  Manchester  School  Case,  L.  R.  1  Eq.  .55  ;  L.  R.  2  Ch.  497 ;  Birkhamp- 
stead  School  Case,  L.  R.  1  Eq.  102. 

3  Cherry  v.  Mott,  1  My.  &  Cr.  123;  Clark  v.  Taylor,  1  Dr.  G42  ;  Att'y- 
Geii.  V.  Oxford,  1  Bro.  Ch.  444,  n.  ;  Russell  v.  Kellett,  3  Stn.  &  Gif.  264 ; 
West  V.  Shuttleworth,  2  My.  &  K.  684  ;  Att'y-Gen.  v.  Oxford,  4  Ves.  432; 
Att>Gen.  v.  Goulding,  2  Bro.  Ch.  428. 

4  McAuley  v.  Wilson,  1  Dev.  Ch.  276  ;  Att>Gen.  v.  Hurst,  2  Cox.  354 ; 
Corbyn  v.  French,  4  Ves.  419;  De  Garcin  v.  Lawson,  4  Ves.  433,  cited; 
De  Themmines  v.  De  Bonneval,  5  Russ.  288 ;  Att'y-Gen.  v.  Jolly,  2  Strob. 
379. 

*  Carter  V.  Balfour,  19  Ala.  814;  Marsh  v.  Means,  3  Jur.  (x.  s.)  790; 
Att'y-Gen.  v.  Power,  1  Ball  &  B.  145 ;  Fisk  v.  Att'y-Gen.  L.  R.  2  Eq. 
621. 


§§  725-728.]     CY  PRES  a  rule  of  construction,  345 

explained,  the  doctrine  of  cy  fres  is  only  a  liberal  rule  of  con- 
struction to  ascertain  intention.  The  intention  of  the  donor  is 
the  point  steadily  aimed  at  by  all  courts.  Any  arbitrary  rule, 
that  substitutes  the  arbitrary  conjectures  of  a  court  for  the 
intention  of  the  donor,  would  be  an  outrage  in  a  country  gov- 
erned by  established  laws  ;  so,  of  course,  any  rule  that  failed 
to  carry  out  the  intention  of  a  donor,  when  such  intention  was 
consistent  with  the  law,  would  be  a  defect  in  the  laws,  that 
would  require  some  remedy.  It  is  proper  to  say,  that  the 
crown,  in  the  exercise  of  its  prerogative,  always  professes  to  be 
governed  by  the  intention  of  the  donor,  and  where  such  inten- 
tion fails,  the  bequest  is  allowed  to  revert  to  the  heir  ;  though 
it  is  difficult  to  understand  how  an  intention  to  aid  a  hospital 
for  foundlings  could  be  deduced  from  a  declared  intention  to 
build  a  Jewish  synagogue.  From  a  few  grotesque  cases  like 
this,  discredit  has  been  thrown  upon  the  whole  doctrine  of 
cy  pres.  The  difference  between  the  crown  and  the  court  is 
this :  the  court  is  governed  by  known  judicial  rules  of  inter- 
pretation ;  the  crown  is  governed  by  its  own  good  will  and 
pleasure  in  deducing  or  imputing  such  intentions  as  it  sees  fit. 

§  728.  When  the  cy  jyres  doctrine  is  reduced  to  its  elements, 
it  becomes  a  very  simple  judicial  rule  of  construction  ;  and, 
as  such,  courts  in  all  the  States  can,  and  do  apply  it  without 
usurping  any  prerogative  powers.^  The  same  rule  may  be,  and 
is  applied  in  a  great  variety  of  cases.  If  a  testator  makes  a 
gift  to  trustees  in  trust  to  invest  the  fund  in  United  States 
bonds  and  pay  the  income  to  his  wife,  and  there  are  no  bonds 
by  reason  of  the  payment  of  the  public  debt,  would  the  trust 

^  Ante,  §  376  ;  Dickson  v.  Montgomery,  1  Swanst.  348  ;  Jackson  r,  Phil- 
lips, 1-i  Allen,  539;  Att'y-Gen.  v.  Wallace,  7  B,  Mon.  611 ;  Philadelphia  v. 
Girard,  45  Penn.  St,  27;  Oilman  v.  Hamilton,  16  111,  231;  AttV-Gen.  v. 
Jolly,  1  Rich.  Eq.  99 ;  2  Strob.  Eq.  395 ;  Moore  v.  :Moore,  4  Dana,  366 ; 
Gass  V.  Wilhite,  2  Dana,  177  ;  Curling  v.  Curling,  8  Dana,  38.  In  Penn- 
sylvania, the  statute  of  18.!)5  now  confers  full  power  on  the  court  to  act 
in  all  cases.     Curtis  r.  Brown,  29  111.  101. 


346  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

therefore  fail  and  the  gift  revert  to  his  heirs,  or  would  the  court 
say  that  the  trust  for  the  wife  l)eing  the  principal  intention  of  the 
bequest,  the  particular  manner  of  the  investment  of  the  funds  is 
incidental,  and  that,  the  particular  direction  of  the  will  having 
failed,  an  investment  will  be  ordered  cy  pres  the  original  direc- 
tion of  the  will  ?  1  So  if  a  fund  is  given  in  trust  for  a  charity,  with 
a  direction  to  accumulate  beyond  the  legal  period,  or  with  any 
other  illegal  or  impossible  direction  as  to  the  incidental  manage- 
ment of  the  fund,  the  court  will  direct  a  management,  that  is 
legal  and  possible,  cy  pres  the  original  direction  ;  and  this  on  the 
ground  that  the  donor  did  not  intend  his  charity  to  fail  because 
one  of  the  incidental  directions  could  not  be  carried  out.^ 

§  729.  With  these  views  in  mind,  it  may  now  be  said  that  a 
bequest  for  charity,  generally  ;  or  to  such  persons  in  trust  as 
shall  be  named  thereafter,  and  none  are  named  ;  ^  or  if  a  fund, 
is  given  for  such  charitaljle  uses  as  shall  be  directed  by  a  codi- 
cil or  note  in  writing,  and  there  are  no  such  papers  to  be 
found ;  *  or  if  a  trust  is  created  in  a  will  for  a  school  to  be 
thereafter  named,  and  none  is  named  ;  °  or  to  the  poor  gener- 
ally; or  to  charity  generally  with  no  trustees  appointed;^  or 
to  the  advancement  of  religion  ; "  or  to  such  uses  as  the  exec- 

^  Chamberlain  v.  Brackett,  L.  R.  8  Ch.  206  and  cases  cited. 

2  Where  the  courts  have  said  that  the  cy  pres  doctrine  did  not  prevail 
in  this  country,  the  cases  have  generally  been  of  such  a  character  that 
probably  the  prerogative  power  rather  than  the  judicial  power  of  construc- 
tion was  intended  to  be  denied.  Methodist  Church  v.  Remington,  1  Watts, 
226 ;  Witman  v.  Lex,  17  S.  &  R.  93  ;  Henry  County  v.  Winnebago,  &c.  52 
111.  454;  Grimes  v.  Harmon,  35  Ind.  237;  Moore  v.  Mooi-e,  4  Dana,  366; 
Williams  v.  Williams,  4  Selden,  525. 

^  Mills  V.  Farmer,  1  Mer.  55,  96 ;  Moggridge  v.  Thackwell,  7  Ves.  36. 

*  Ibid. ;  AttV-Gen.  v.  Syderfin,  1  Vern.  224 ;  2  Freem.  261 ;  Cook  v. 
Dunkenfield,  2  Atk.  56,  567  ;  Commissioners  v.  Sullivan,  1  Dru.  &  War.  501. 

*  Ibid. ;  Att'y-Gen.  v.  Syderfin,  ut  supra. 

*  AttV-Gen.  v.  Mathews,  2  Lev.  167  ;  Finch,  245  ;  Att'y-Gen.  v.  Ranee, 
Amb.  422;  Clifford  v.  Francis,  Freem.  330;  Att'y-Gen.  v.  Herrick,  Amb. 
712. 

'  Powerscourt  v.  Powerscourt,  1  Mol.  616. 


§§  728-730.]       GIFTS   TO    UNINCORPORATED    SOCIETIES.  347 

liter  shall  appoint,  and  the  executor's  appointment  is  revoked,  or 
the  executor  renounces  probate,^  or  refuses  to  appoint ;  -  or  if  a 
a  gift  is  made  for  an  object  which  has  no  existence,^  or  which  is 
void  in  law,^  or  is  impossible  before  the  administration  of  the 
charity  begins  :  ^  or  giving  to  an  uncertain  charity :  or  to 
trustees  who  refuses  to  accept  and  exercise  the  discretion,  and 
there  is  no  authority  in  the  successors  to  exercise  the  power ;  ^ 
or  to  a  particular  charity  by  a  description  so  uncertain  that  it 
is  wholly  uncertain  what  charity  is  intended  ; "  or  where  the 
sums  or  the  charities  are  wholly  uncertain,^  —  in  all  these 
cases,  courts  in  America  could  not  interfere  to  establish  the 
charities,  appoint  trustees,  or  decree  a  scheme  by  which  the 
funds  should  be  expended.  Some  prerogative  power  is  neces- 
sary to  give  effect  to  such  inchoate,  imperfect,  or  illegal 
bequests.  Courts  in  England  do  not  profess  to  administer 
them  in  their  judicial  capacity,^  and  the  courts  in  America, 
with  a  few  exceptions,  have  declined  to  act  in  such  cases. ^*^ 

§  730.  It  is  well  settled,  that  a  devise  for  a  charitable  use 

to  church-wardens,  although  not  a  corporation  cajtable  in  law 

'  White  V.  White,  1  Bro.  Ch.  12 ;  Att'y-Gen.  v.  Fletcher,  5  L.  J.  (x.  s.) 
Ch.  75._ 

*  AttV-Gen.  V.  Boultbee,  2  Ves.  Jr.  380;  3  Ves.  220. 

*  Att'y-Gen.  v.  London,  3  Bro.  Ch.  171  ;  1  Ves.  Jr.  143;  Loscombe  v. 
Wentringham,  13  Beav.  87  ;  Att'y-Gen.  v.  Oglander,  1  Bro.  Ch.  166. 

*  Att'y-Gen.  v.  Whorwood,  1  Ves.  534;  Da  Costa  v.  De  Pas,  Amb.  228; 
Att'y-Gen.  v.  Vint,  3  De  G.  &  Sm.  704 ;  Cary  v.  Abbott,  7  Ves.  490 ;  Att'y- 
Gen.  V.  Goulding,  2  Bro.  Ch.  428. 

6  Att'y  Gen.  v.  Guise,  2  Vern.  266  ;  Heyter  v.  Trego,  5  Russ.  113  ; 
Att'y-Gen.  v.  Ironmongers'  Co.  Cr,  &  Phil.  208;  10  01.  &  Fin.  908;  Att'y- 
Gen.  V.  Glyn,  12  Sim.  84 ;  IMartin  v.  ]\Iargham,  14  Sim.  230  ;  Incorporated 
Soc.  V.  Price,  IJ.  »fe  Lat.  498. 

^  Att'y-Gen.  v.  Andrew,  3  Ves.  633  ;  Denver  v.  Druce,  Tanil.  32  ;  Reeve 
V.  Att'y-Gen.  3  Hare,  191  ;  Fontain  v.  Ravenel,  17  How.  382  ;  Att'y-Gen. 
V.  Jackson,  11  Ves.  365. 

''  Simon  v.  Barker,  5  Russ.  112;  Bennet  v.  Hayter,  2  Beav.  81. 

8  Pieschel  v.  Paris,  2  S.  &  S.  384;  Hartshorne  v.  Nicholson,  26  Beav.  58. 

9  1  Jarman  on  Wills,  p.  224  (ed.  1861). 
'"  Grimes  v.  Harmon,  35  Ind.  198. 


348  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

of  holding  and  transmitting  property,  will  be  sustained;^  and 
so  a  devise  to  certain  officers  or  their  successors  in  office,  or, 
if  they  are  incapable  of  executing  the  trust,  tlien  to  a  corpora- 
tion to  be  formed  for  the  purpose,  was  held  by  the  Supreme 
Court  of  the  United  States,  to  be  a  good  devise  and  capable  of 
being  carried  into  effect.^  A  gift  to  a  corporation  by  a  mis- 
nomer is  good  for  a  charitable  purpose,  if  the  corporation  can 
be  identified ;  ^  gifts  in  trust  to  voluntary  associations  for  char- 
itable purposes  have  been  upheld,'*  and  so  have  gifts  to  churches, 
societies,  conferences,  yearly  meetings  of  Friends,  and  families 
of  Sliakers,  and  other  organizations.^  Tlicse  bodies,  or  quasi 
corporations,  have  been  considered  so  far  under  the  control  of 
a  court  of  equity  that  they  would  be  compelled  to  execute  the 
duties  of  the  trust  imposed  upon  them,  and  could  be  dealt  with 

1  Att'y-Gen.  v.  Oglander,  3  Bro.  Ch.  166  ;  Att'y-Gen.  v.  Green,  2  Bro. 
Ch.  492;  Att'y-Gen.  v.  Boultbee,  2  Ves.  Jr.  380  ;  Frier  v.  Peacock,  Finch, 
245  ;  Duke,  355  ;  Att'y-Gen.  v.  Wansay,  15  Ves.  232;  Burrill  v.  Board- 
man,  43  N.  Y.  254. 

«  Inglis  V.  Sailors'  Snug  Harbor,  3  Pet.  99 ;  White  v.  White,  1  Bro.  Ch. 
12  ;  Att'y-Gen.  v.  Downing,  Amb.  550  ;  Att'y-Gen.  v.  Bowyer,  3  Ves. 
714. 

^  Tucker  v.  Seamen's  Aid  Soc.  7  Met.  188  ;  Winslow  v.  Cummings,  3 
Gush.  359;  Minot  v.  Boston  Asylum,  7  Met.  417  ;  Anon.  1  Ch.  Ca.  267  ; 
Att'y-Gen.  v.  Piatt,  Finch,  221  ;  Hornbeck  v.  American  Bible  Soc.  2 
Sandf.  Ch.  183  ;  Chapin  v.  School  Dis.  35  N.  H.  445 ;  Tappan  v.  Deblois, 
45  Me.  122. 

*  Duke  V.  Fuller,  9  N.  H.  535;  Volgen  v.  Yaes,  2  Barb.  Ch.  290; 
Burr  V.  Smith,  7  Vt.  241  ;  Antones  v.  Eslava,  9  Porter,  527  ;  Washburn  v. 
Sewell,  9  Met.  280  ;  Zeisweiss  v.  James,  63  Penn.  St.  465  ;  Roshi's  App. 
69  Penn.  St.  462.  But  see  White  v.  Hale,  2  Cold.  77,  German,  &c.  Associa- 
tion, 10  INIinn.  337,  and  Grimes  w.  Harmon,  35  Ind.  198. 

'  MagiU  V.  Brown,  Brightly,  347  ;  Shotwell  v.  Mott,  2  Sand.  Ch.  46  ; 
Pickering  v.  Shotwell,  10  Barr,  23  ;  Wright  v.  Linn,  9  Barr,  433  ;  Beaver 
V.  Filsom,  8  Barr,  327  ;  Wright  v.  Methodist  Church,  1  Hoff.  Ch.  202  ; 
Hendrickson  v.  Decow,  Saxt.  577  ;  Att'y-Gen.  v.  Jolly,  1  Rich.  Eq.  99  ; 
2  Strob.  Eq.  379  ;  White  v.   Att'y-Gen.  4  Ired.  Eq.  19  ;  Banks  v.  Phelan, 

4  Barb.  80  ;  Williams  v.  Pearson,  38  Ala.  299  ;  Missionary  Soc.  30  Penn. 

5  .  .25  ;  Price  v.  Maxwell,  28  Penn.  St.  23  ;  Preachers'  Aid  Soc.  v.  Rich, 
45  Me.  552  ;  Evangelical  Association,  35  Penn.  St.  316  ;  Gass  v.  Wilhite, 
2  Dana,  170. 


§§  730,  731.]      WHERE  THE  OBJECTS  MAY  BE  MADE  CERTAIN.      349 

for  a  breach. 1  But  a  gift  to  a  corporation  that  may  not  be 
incorporated  within  the  time  limited  for  tlie  vesting  of  estates, 
or  to  a  corporation  to  come  into  existence  that  cannot  be  incor- 
porated under  the  hiws  of  a  State,  will  fail.-  Property  given 
to  trustees  for  voluntary  religious  societies  does  not  vest  in 
new  trustees  who  may  be  elected  from  time  to  time,  but  remains 
in  the  old  trustees  until  they  make  a  conveyance.^ 

§  731.  If  a  testator  creates  a  trust  for  a  particular  charitable 
purpose,  as  for  a  school,  hospital,  almshouse,  church,  or  other 
institution,  and  points  out  all  the  details,  so  that  there  is  cer- 
tainty in  the  purposes  and  objects  of  the  charity,  and  appoints 
no  trustees,  or  if  the  trustees  fail  for  any  reason,  courts  will 
appoint  other  trustees,  for  sucli  is  the  plain  intention  of  the 
donor ;  and  it  is  a  maxim  of  courts  never  to  allow  a  certain 
and  valid  trust  to  fail  for  want  of  a  trustee.'*  In  such  cases, 
the  courts  say  that  there  is  no  ground  to  suppose  that  the  dis- 
cretion of  any  particular  trustee  has  any  thing  to  do  with  the 
essence  of  the  gift.^  Again,  if  a  testator  makes  a  bequest  for 
a  charitable  use  in  the  most  general  and  indefinite  terms,  and 
appoints  trustees  to  exercise  their  discretion  in  selecting  the 
objects  and  in  reducing  the  general  intent  to  a  particular  and 
practical  application,   and   such  trustees  fail  for  any  reason, 

^  IIiibt)ard  v.  German  Cath.  Cong.  3-i  lo.  31  ;  Worrell  v.  Presbyterian 
Churcii,  28  N.  J.  Eq.  96. 

*  Zeisweiss  v.  James,  62  Penn.  St.  465. 

'  Peabody  v.  f^astern  Metli.  Soc.  6  Allen,  540. 

*  §§  38,  45,  240,  24S,  427,  Treat's  App.  30  Conn.  113  ;  White  v.  Hamp- 
ton, 13  lo.  259. 

'  Inglis  V.  Sailors'  Snug  Harbor,  3  Peters,  99  ;  Reeve  v.  Att'y-Gen. 
3  Ilare,  191  ;  Hayter  v.  Trego,  5  lluss.  113  ;  Denver  v.  Druce,  Taml.  32  ; 
Soe.  for  tiie  Prop,  of  Gos.  v.  Att'y-Gen.  3  lluss.  142  ;  Walsh  t'.  Gladstone, 
1  Phil.  Ch.  290.  Where  a  testator  directed  his  trustees  to  pay  the  income 
of  a  fund  to  (he  committee  of  a  certain  school  society  (that  being  a  kind  of 
school  district)  fur  tlie  benefit  of  poor  children,  and  the  legislature  having 
abolished  school  societies,  it  was  hehl,  that  the  charity  still  remained  to  be 
administered  in  some  other  form.     Ijerchard  v.  Scott,  39  Conn.  08. 


350  TRUSTS    FOR   CHARITABLE    USES.  [CHAP.  XXIII. 

without  having  exercised  their  discretion  or  power  of  appoint- 
ment in  reducing  the  general  and  indefinite  charity  to  a  prac- 
tical certainty  of  administration,  courts  will  be  governed  by 
the  intention  of  the  donor,  in  determining  whether  they  will 
appoint  other  trustees  to  exercise  the  power  given  to  the  first 
trustees  named  in  the  will.  If  the  power  given  to  the  first 
trustees  is  a  personal  trust  and  confidence,  the  court  should 
not  appoint  other  trustees  to  exercise  that  power,  contrary  to 
the  intention  of  the  donor ;  but  tlie  court  ouglit  to  act  upon 
liberal  principles  of  construction  in  finding  such  intention.^ 
If  a  testator  makes  a  general  and  indefinite  bequest  to  charity, 
or  to  the  poor,  or  to  religion,  and  appoints  no  trustee,  but 
plainly  refers  such  appointment  to  the  court,  there  would  seem 
to  be  no  impropriety  in  the  court  appointing  a  trustee,  accord- 
ing to  the  plain  intent  of  the  donor,  leaving  such  trustee  to 
find  his  power  in  the  will  of  the  donor.  But  if  a  testator 
makes  a  vague  and  indefinite  gift  to  charity,  and  names  no 
trustee,  and  gives  no  power  to  the  court  to  appoint,  there  is  no 
power  in  the  American  courts  to  administer  such  an  inchoate 
and  imperfect  gift.^ 

'  Ante,  §  721  ;  Lorings  v.  Marsh,  6  Wall.  337  ;  Att'y-Gen.  v.  Gladstone, 
13  Sim.  7  ;  Fontain  v.  Ravenel,  17  How.  382  ;  Down  v.  Warrall,  1  My.  & 
K.  561;  Green  v.  Allen,  5  Humph.  170;  Griffin  v.  Graham,  1  Hawks,  96. 

■^  In  2  Redf.  on  ^Yi\h,  pp.  517,  518,  535  (2d  ed.),  it  is  asserted  that  the 
American  courts  exercise  the  ordinary  chancery  jurisdiction  of  the  Court  of 
Chancery  in  England,  and  also  the  prerogative  power  of  the  crown;  that 
they  carry  into  effect  trusts  where  there  is  great  indefiniteness  in  the  objects, 
and  that  "  the  want  of  a  trustee  in  such  cases  is  never  any  obstacle  in  the 
way  of  a  court  carrying  into  effect  any  trust,  and  more  especially  one  of  a 
charitable  character."  In  support  of  these  assertions,  Whitman  v.  Lex,  17 
S.  &  R.  88  ;  Moore  v.  Moore,  4  Dana,  351;  McGirr  v.  Aaron,  1  Penn.  49; 
Methodist  Church  v.  Remington,  1  Watts,  218  ;  Morrison  v.  Beirer,  2 
Watts  &  S.  81;  Zimmerman  v.  Anders,  6  Watts  &  S.  218;  Pickering  v. 
Shotwell,  10  Penn.  St.  23;  State  v.  Girard,  2  Ired.  Eq.  210  ;  Antones  v. 
Eslava,  9  Porter,  527  ;  Dickson  v.  Montgomery,  1  Swanst.  348  ;  Zanesville 
C.  &  M.  Co.  V.  Zanesville,  20  Ohio,  483  ;  Att  y-Gen.  v.  Jolly,  1  Rich.  Eq. 
99,  are  cited.  It  may  be  said,  in  regard  to  these  statements  and  these 
authorities,  that  no   court  in  America  has  ever  supposed  that  it  was  exer- 


§§  731,  732.]      WHERE  THE  OBJECTS  MAY  BE  MADE  CERTAIN.      351 

• 

§  732.  It  is,  therefore,  immaterial  how  uncertain,  indefinite, 
and  vague  the  cestuis  que  trust  or  final  beneficiaries  of  a  cliari- 
table  trust  are,  provided  there  is  a  legal  mode  of  rendering  them 
certain  by  means  of  trustees  appointed  or  to  be  appointed.  In 
other  words,  it  is  immaterial  how  unc(!rtain  the  beneficiaries 
er  objects  are,  if  the  court,  l)y  a  true  construction  of  tlie  instru- 
ment, has  power  to  appoint  trustees,  to  exercise  the  discretion 
or  power  of  making  tlie  beneficiaries  as  certain  as  the  nature 
of  tlie  trust  requires  tliem  to  bc.^  Thus  a  gift  to  trustees  to 
ediiate  six  orphan  boys,  to  be  selected  and  put  to  school  by 
them,  is  uncertain,  as  the  boys  are  uncertain  until  they  are 
selected.  To  say  that  such  a  trust  should  not  be  executed,  but 
that  the  heir  should  take  the  fund,  because  there  is  no  orphan 
boy  in  the  world  that  can  come  into  court  and  claim  the  be- 
quest, would  be  to  subvert  the  foundation  of  all  public  charity. 
In  all  such  cases,  the  heir  or  other  person  interested  may 
bring  his  bill  to  test  the  legality  of  the  charity,  or  the  trustees 
may  bring  their  bill  for  instruction,  or  the  attorney-general 
may  bring  a  bill  or  information  to  establish  the  trust ;  and  the 
court,  on  such  bills,  can  pass  upon  the  validity  of  the  bequest 
as  a  charitable  use.^  If,  after  the  charity  is  established  and  is 
in  process  of  administration,  there  is  any  abuse  of  the  trust  or 

ci.sing  any  tiling  more  than  its  ordinary  eqnity  power,  or  that  it  possessed, 
or  could  exercise,  any  arbitrary  or  prerogative  power  of  the  crown  of  Eng- 
land, unless  such  power  had  been  expressly  conferred  upon  it  by  the  legis- 
lature. It  may  be  further  said,  that,  if  courts  have  appointed  trustees  to 
carry  into  effect  trusts  that  Avere  indefinite  and  vague,  they  have  done  so  in 
pursuance  of  what  they  supposed  to  be  the  intention  of  the  donors,  arrived 
at  by  a  liberal  construction  of  the  wills  or  deeds.  If  any  cases  are  not 
within  this  proposition,  they  probably  would  not  be  followed  by  courts  that 
have  no  power  to  exercise  any  jurisdiction  not  of  a  judicial  character.  In 
1855,  the  legislature  of  Pennsylvania  conferred  upon  their  courts  the  cy-pres 
power  of  the  English  chancery,  so  that  thereafter  no  property  given  to 
religious,  charitable,  literary,  or  scientific  uses,  should  ever  revert  to  the 
heir.     Purd.  Dig.  145  ;  Miller  v.  Porter,  53  Penn.  St.  297. 

'  McLain  V.  School  Directors,  51  Penn.  St.  19G  ;  Zeisweiss  v.  James, 
63  Penn.  St.  465  ;  Miller  v.  Atkinson,  63  N.  C.  637. 

*  Burrill  v.  Boardman,  43  N.  Y.  254. 


852  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

misemployment  of  the  funds,  and  there  are  no  individuals  hav- 
ing the  right  to  come  into  court  and  maintain  a  bill,  tlie  attor- 
ney-general, representing  the  sovereign  power  and  the  general 
public,  may  bring  the  subject  before  the  court  by  bill  or  infor- 
mation, and  obtain  perfect  redress  for  all  abuses.^  But  where 
a  gift  is  not  a  public  charity,  but  is  to  a  school  that  is  not 
free  and  open  to  the  general  public,  the  attorney-general  cannot 
maintain  an  information  or  bill.^  So  if  there  is  a  gift  or  dedi- 
cation of  land  for  a  church  or  meeting-house,  to  be  owned  by 
the  church,  parish,  society,  or  by  pew-holders,  who  have  vested 
rights  and  can  sue,  the  attorney-general  cannot  sue  in  liis  offi- 
cial capacity,  unless  the  gift  is  so  public  and  indefinite  that  no 
individuals  or  corporations  have  the  right  to  come  into  court 
for  redress.  Suits  to  regulate  such  trusts  must  be  brought  by 
the  parties  interested.^  The  church  edifices  of  this  country 
stand  in  a  peculiar  position.  They  are  not  free,  open  churches, 
as  those  words  are  used  in  describing  a  public  charity.  They 
are  owned  by  societies,  parishes,  churches,  trustees,  or  pew- 
holders,  and  can  be  controlled  by  these  bodies  as  corporations 
or  quasi  corporations,  and  directed  to  such  uses  as  they  see  fit ; 
for  these  reasons  the  funds,  given  or  contributed  to  build  these 
edifices  and  keep  them  in  repair,  are  not  funds  given  for  public 
charitable  uses  in  the  legal  sense ;  consequently  the  attorney- 
general  can  seldom  maintain  an  information  for  any  alleged 
misuse  or  pretended  perversion  of  these  church  edifices.'*     But 

'  Att'y-Gen.  v.  Garrison,  101  Mass.  223  ;  Wellbeloved  v.  Jones,  1  S.  & 
S.  40;  Ludlow  v.  Greenhouse,  1  Bligh  (n.  s.),  17  ;  Lewiti,  CGo-674;  Par- 
ker v.  May,  5  Cush.  341. 

2  Att'y-Gen.  v.  Heiner,  2  Vern.  3h7 ;  Liley  v.  Hey,  1  Hare,  150  ;  Well- 
beloved  V.  Jones,  1  S.  &  S.  40  ;  Att'y-Gen.  v.  Smart,  1  Ves.  72  ;  Att'y- 
Gen.  V.  Jeanes,  1  Atk.  355  ;  Att'y-Gen.  v.  Whiteley,  11  Ves.  241  ;  Att'y-Gen. 
V.  Parker,  1  Ves.  43  ;  2  Atk.  576  ;  Att'y-Gen.  v.  Wliorwood,  1  Ves.  534  ; 
Att'y-Gen.  v.  Brereton,  2  Ves.  426  ;  Att'y-Gen.  v.  Middleton,  2  Ves.  328; 
Mavor  o.  Nixon,  2  Y.  &  Jer.  60. 

^  Att'y-Gen.  v.  Merrimack  Manufacturing  Co.  14  Gray,  586;  Att'y-Gen. 
V.  Federal  St.  Meeting-liouse,  3  Gray,  1. 

*  Ibid. ;  Dublin  Case,  38  N.  H.  459. 


§§  732,  733.]     OBJECTS  of  the  gift  cannot  be  changed.     353 

if  property  is  in  the  hands  of  trustees  of  a  church  or  religious 
society,  in  sucli  manner  that  it  is  a  charital)le  trust  or  other- 
wise, the  trustees  must  manage  the  property,  according  to  the 
usages  of  the  society,  and  courts  of  equity  can  interfere  to  pre- 
vent abuses  and  to  preserve  the  use  of  the  property  in  the 
accustomed  channel.^ 

§  733.  As  a  charitable  use  cannot  be  changed  from  the 
purposes  declared  by  the  donor,  so  long  as  there  are  any  objects 
of  such  charity,  or  so  long  as  it  can  be  applied  to  the  purposes 
named,  and  the  courts,  where  the  objects  fail,  construe  the 
instrument  creating  the  trust,  to  discover  the  charitable  pur- 
pose of  the  donor,  cy  pres  the  original  purpose  ;  ^  so  a  charitable 
gift  must  be  accepted  upon  the  same  terms  upon  which  it  is 
given  ;  ^  and  the  trustees,  whether  individuals  or  corporations, 
cannot  convert  the  fund  to  other  uses,  so  long  as  the  uses 
declared  by  the  donor  are  capable  of  execution.*  Thus  if  the 
gift  is  to  provide  a  preacher  in  Dale,  it  would  l)e  a  breach  of 
trust  to  provide  one  in  Sale  ;  or  if  it  is  to  provide  a  preacher, 
it  cannot  be  given  to  the  poor  ;  ^  or  if  it  is  for  the  poor  of  one 
parisli,  it  cannot  be  extended  to  other  parishes  ;  ^  or  if  to  repair 
a  chapel,  it  cannot  be  mixed  up  with  parochial  funds  or  the 
poor-rates ;  '^  or  if  for  erecting  a  hospital,  it  cannot  be  used 

1  Briinnenmayer  v.  Buhre,  32  111.  183 ;  German,  &c.  Congregation  v. 
Repler,  17  La.  An.  127.  -  See  §§  724-728. 

8  Gilman  v.  Hamilton,  16  111.  225 ;  Silcox  v.  Harper,  32  Ga.  639. 

*  Att'y-Gen.  v.  Rochester,  5  De  G.,  M.  &  G.  797;  Att'y-Gen.  v.  Sher- 
borne School,  18  Beav.  256 ;  Att'y-Gen.  v.  Gould,  28  Beav.  485 ;  Ward  v. 
Hipwell,  3  Gif.  547 ;  Att'y-Gen.  v.  Calvert,  23  Beav.  248 ;  Li  re  Stafford 
Charities,  25  Beav.  28;  Att'y-Gen.  v.  Bourchette,  25  Beav,  116;  Att'y-Gen. 
V.  Piatt,  Finch,  221 ;  Margaret  v.  Regius  Professors  in  Cambridge,  1  Vern. 
55 :  Mann  v.  Ballott,  1  Vern.  43 ;  1  Eq.  Ca.  Ab.  99 ;  Att'y-Gen.  v.  Gleg, 
1  Atk.  356  ;  Amb.  373. 

*  Att'y-Gen.  v.  Newbury  Cor.  C.  P.  Cooper  Ca.  (1837,  1838)  72 ; 
Att'y-Gen.  v.  Goldsmiths'  Co.  (ib.)  292;  Duke  94,  116. 

«  Att'y-Gen.  v.  Brandreth,  1  Yo.  &  Col.  Ch.  200. 

^  Att'y-Gen.  v.  Vivian,   1  Russ.  226-337  ;    Att'y-Gen.  v.  Mansfield,  2 
Russ.  501;  Ex  parte  Greenhouse,  1  Mad.  92;  1  Bligh  (n.  s.),  17. 
VOL.  II.  23 


854  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

for  municipal  purposes ;  ^  or  if  it  is  to  support  the  preaching  of 
a  particular  religious  doctrine,  it  is  a  breach  of  trust  to  support 
the  preaching  of  any  other  doctrine,  though  the  difference  is 
very  slight.^  And  generally  a  charitable  donation  for  religious 
purposes  must  be  applied  to  sustain  the  purposes  and  doctrines 
of  the  donor,  as  indicated  by  him  ;  and  if  the  donor  has  not 
clearly  stated  the  doctrines  he  intends  to  favor,  courts  will 
inquire  into  the  doctrines  held  by  him,  and,  when  ascertained, 
will  presume  them  to  be  the  doctrines  intended  to  be  taught 
under  the  trust.^  If  there  occurs  a  schism  in  the  church  or 
body  to  which  the  trust  is  given,  the  funds  generally  follow 
the  old  organization,  unless  it  has  made  a  material  departure 
from  the  faith  of  the  original  founder.*  If  the  charter  or 
organization  of  a  church  defines  its  relations  and  purposes,  and 
determines  the  rules  and  regulations  under  which  it  must  act, 
or,  in  other  words,  establishes  a  constitution  to  regulate  and 
limit  its  action,  that  body  which  acts  according  to  its  consti- 
tution will  be  the  regular  church,  and  entitled  to  the  church 
property,  whether  it  may  be   a  majority  or  minority  of  the 

»  Att'y-Gen.  v.  Kell,  2  Beav.  575 ;  Att'y-Gen.  v.  Exeter,  2  Russ.  45 ;  3 
Russ.  395 ;  Att'y-Gen.  v.  Wilkinson,  1  Beav.  372 ;  Att'y-Gen.  v.  Bovill, 
1  Phil.  762 ;  Att'y-Gen.  v.  Blizard,  22  Beav.  233. 

"  Combe  v.  Brazier,  2  Des.  431. 

3  Shore  v.  Wilson,  9  CI.  &  Fin.  355;  Att'y-Gen.  v.  Shore,  11  Sim.  592; 
Att'y-Gen.  v.  Pearson,  3  Mer.  353  ;  Earle  v.  Wood,  8  Cush.  430 ;  Dublin 
Case,  38  N.  H.  459;  Combe  v.  Brazier,  2  Des.  431;  App  v.  Lutheran 
Congregation,  6  Penn.  St.  201 ;  Robertson  v.  Bullions,  1  Kern.  243 ; 
Att'y-Gen.  v.  Drumniond,  1  Dr.  &  War.  353  ;  Winebrenner  v.  Colder,  43 
Penn.  St.  244;  Kniskern  v.  Lutheran  Churches,  1  Sand.  Ch.  439;  Miller 
V.  Gable,  2  Denio,  492 ;  Princeton  v.  Adams,  10  Cush.  129 ;  Att'y-Gen.  v. 
Moore,  4  C.  E.  Green,  503;  Att'y-Gen.  v.  Bunce,  L.  R.  6  Eq.  563;  Att'y- 
Gen.  V.  Glasgow  Coll.  2  Coll.  Ch.  665 ;  Potter  v.  Thornton,  7  R.  I.  252 ; 
Att'y-Gen.  v.  Murdoch,  7  Hare,  445  ;  1  De  G.,  M.  &  G.  86. 

*  Ibid. ;  Hendrickson  v.  Decow,  Saxton,  577 ;  Eai'le  v.  Wood,  8  Cush. 
430;  Roshi's  App.  69  Penn.  St.  462;  Godfrey  v.  Walker,  42  Ga.  562 ; 
Bouldin  v.  Alexander,  14  Wall.  132 ;  McBride  v.  Porter,  17  lo.  203.  But 
see  Ferraria  v.  Vasconcellos,  31  111.  25 ;  First  Constitutional  Presbyterian 
Church  V.  Congregational  Soc.  23  lo.  567. 


§§  733,  734,]      CHANGES   BY    AGREEMENT   OF   PARTIES.  355 

'whole  number  of  the  whole  church. ^  Equity  will  not  interfere 
unless  there  is  a  substantial  abuse  or  misuser  of  the  funds, 
which  amounts  to  a  perversion  of  the  charity.^  A  mere 
change  of  ecclesiastical  relations  is  not  necessarily  a  perver- 
sion of  the  trust.^  But  trustees  to  hold  church  property  for 
a  church  according  to  the  usages  of  a  church  may  be  enjoined 
for  letting  it  for  school  purposes.*  A  gift  to  a  religious  society, 
or  to  a  charitable  or  educational  institution,  will  be  presumed 
to  be  a  charitable  gift,  though  no  purposes  are  named,  and 
such  societies  will  be  presumed  to  hold  such  gifts  in  trust  for 
those  religious  and  charitable  purposes  for  which  they  exist.^ 
Where  there  are  numerous  contributors  to  a  charitable  fund, 
the  declaration  of  one  of  the  contributors,  long  acted  upon, 
will  be  taken  j^f'ima  facie,  as  a  declaration  of  the  purposes  of 
the  trust.^  In  such  case  the  contributors  to  the  fund  cannot 
maintain  a  bill  to  correct  an  abuse  of  the  fund  by  the  trustees, 
unless  they  are  also  the  cestuis  que  trustJ 

§  734.  The  proposition  that  charities  must  be  accepted  upon 
the  terms  upon  which  they  are  given,  and  that  they  cannot  be 
altered  by  any  new  agreement  between  the  heir  of  the  donor, 
the  trustees,  beneficiaries,  or  any  other  parties  thereto,  is  con- 
fined to  charities  established  by  the  gift  and  bounty  of  some 
donor  for  a  particular  faith  ;  ^  for  if  a  religious  society  is  en- 

^  Swarr's  App.  G7  Penn.  St.  146. 

*  Happy  V.  Morton,  33  111.  398. 

^  Swedesborough  Church  v.  Shivers,  1  Green,  Ch.  453 ;  Lutheran  Cong. 
V.  St.  Michaers  Church,  48  Penn.  St.  20. 

*  Perry  v.  McEwen,  12  Ind.  440. 

*  Incorporated  Soc.  v.  Richards,  1  Dru.  &  W.  294 ;  Evangelical  Assoc. 
App.  35  Penn.  St.  310;  Att'y-Gen.  v.  Pearson,  7  Sim.  290;  3  Mer.  409; 
Re  llminster  School,  2  De  G.  &  Jo.  535 ;  8  II.  L.  Ca.  495 ;  Be  Stafford 
Char.  25  Beav.  28;  Att'y-Gen.  v.  Clifton,  32  Beav.  596;  Everett  v.  Carr, 
69  Me.  333. 

«  Att'y-Gen.  v.  Clapham,  4  De  G.,  M.  &  G.  626;  Newmyer's  App.  72 
Penn.  St.  121. 

->  Ludlam  v.  High,  3  Stockt.  342. 

8  Att'y-Gen.  v.  Munro,  2  De  G.  &  Sni.  163 ;  Field  v.  Field,  9  Wend. 


356  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

dowed  with  funds  by  a  donor  for  its  general  purposes,  or  if 
such  society  creates  a  fund  by  contribution  thereto  by  its  indi- 
vidual members,  although  such  funds  are  charitable,  yet  such 
society  may  by  agreement  alter  its  faith  and  practice,  and  still 
retain  its  funds  with  which  to  teach  its  new  faith. ^  So  it  has 
been  held  that  a  use  for  forty  years  will  establish  the  right  to 
appropriate  the  funds  to  an  altered  faith.^  So  where  it  can- 
not be  discovered  from  documents  what  particular  form  of 
worship  was  intended  to  be  established  by  the  charity,  long- 
continued  usage  by  the  congregation  will  be  received  as  evi- 
dence of  the  original  intent.^  But  if  the  original  purpose  of 
the  donor  is  perfectly  clear,  the  court  cannot  cliange  the  trust, 
although  the  congregation  may  have  followed  a  different  prac- 
tice :  the  majority  cannot  say  we  have  changed  our  opinions, 
and  the  fund  shall  hereafter  be  for  the  benefit  of  people  of  our 
faith  and  form  of  worship.^  If  the  trustee  is  a  corporation, 
having  power  to  make  hy-laivs,  this  franchise  will  not  extend 
so  far  as  to  enable  it  to  pervert  the  charity.'^  If  the  deed  of 
investment  contains  a  clause,  authorizing  a  majority  of  trustees 

394 ;  Miller  v.  Gable,  2  Denio,  525  ;  People  v.  Steele,  2  Barb.  397  ;  Craig- 
dallie  v.  Aikman,  1  Dow,  1 ;  2  Bligh,  529 ;  Milligan  v.  Mitchell,  3  My.  & 
Cr.  72. 

1  Att'y-Gen.  v.  Prop.  Federal  St.  Meeting-House,  3  Gray,  61 ;  Dublin 
Case,  38  N.  H.  459;  Brendle  v.  German  Ref.  Cong.  33  Penn.  St.  418; 
Att'y-Gen.  v.  Clergy  Soc.  8  Rich.  Eq.  190 ;  Brent  v.  Sandwich,  9  Mass. 
289 ;  Avery  v.  Tyringham,  3  Mass.  182 ;  Sheldon  v.  Easton,  24  Pick.  287 ; 
Hollis  St.  Meeting-House  v.  Pierpont,  7  Met.  499 ;  Brown  v.  Lutheran 
Church,  23  Penn.  St.  498. 

2  Att'y-Gen.  v.  Federal  St.  Meeting-House,  3  Gray,  64. 

3  Att'y-Gen.  Hutton,  1  Dru.  530 ;  Stat.  7  iS;  8  Vict.  c.  45,  §  2,  fixes 
twenty-five  years. 

*  Att'y-Gen.  v.  Munro,  2  De  G.  &  Sra.  122;  Milligan  v.  Mitchell,  3  M. 

6  C.  73 ;  Foley  v.  Wontner,  2  J.  &  W.  247 ;  Craigdallie  v.  Aikman,  1 
Dow,  P.  C.  1 ;  Broom  v.  Summers,  11  Sim.  357;  Att'y-Gen.  v.  Murdoch, 

7  Hare,  445;  1  De  G.,  M.  &  G.  86;  Att'y-Gen.  v.  Rochester,  5  De  G.,  M. 
&  G.  797 ;  Meeting  Street  Bap.  Soc.  v.  Hail,  8  R.  I.  241 ;  Howe  v.  School 
District,  43  Vt.  282. 

«  Eden  v.  Foster,  2  P.  Wms.  327 ;  Field  r.  Girard  College,  54  Penn.  St. 
233. 


§§  734,  735.]      CHANGES   BY   AGREEMENT   OF    PARTIES.  357 

to  make  rules  and  orders  from  time  to  time  when  they  think 
proper,  such  clause  will  not  authorize  the  trustees  to  change 
the  objects  of  the  charity,  or  the  doctrines  to  be  promulgated.^ 

§  735.  Nor  can  the  trustees,  whether  persons  or  corporations, 
appointed  to  administer  a  charity,  be  changed  by  the  agreement 
of  the  parties,  nor  for  mere  convenience  ;  as  where  funds  were 
given  to  Harvard  College  by  various  donors  for  the  purpose  of 
promoting  education  at  the  college,  by  a  school  to  be  a  branch 
of  the  university,  the  court  held  that  the  funds  could  not  be 
withdrawn  from  the  corporation  of  Harvard  College,  and  in- 
trusted to  an  independent  board  of  trustees,  to  be  applied  to 
the  support  of  a  divinity  school  not  connected  with  the  college, 
although  such  separation  would  be  convenient  for  all  parties, 
and  would  produce  greater  vigor  and  eflSciency  in  the  adminis- 
tration of  the  fui  ds.  The  court  decided  that  the  funds  had 
been  given  to  Harvard  College  as  a  known  institution,  and 
upon  a  personal  trust  and  confidence  ;  that  the  constitution  of 
a  charity  could  not  be  changed  for  reasons  of  mere  expediency  ; 
and  that  a  court  of  equity  cannot  remove  trustees  and  appoint 
others,  except  for  incapacity,  unfaithfulness,  or  failure  to  per- 
form their  duties.^  If  a  trustee  is  known  to  hold  such  o[)inions 
in  relation  to  the  trust  as  it  is  ordered  to  be  administered  by 
the  court,  that  he  cannot  be  expected  cordially  and  faithfully 
to  execute  it,  he  may  be  removed,  and  a  proper  person  ap- 
pointed.^ If  trustees  who  are  to  administer  a  trust  cease,  for 
any  reason,  to  be  subject  to  the  jurisdiction  of  the  court  hav- 
ing jurisdiction  over  the  charity,  such  trustees  may  be  removed.^ 
If  the  trustees,  by  a  mistake,  select  or  appoint  the  objects  of  a 

1  Att'y-Gen.  v.  Pearson,  3  Mer.  411. 

^  Harvard  College  v.  Soc.  for  Prom.  Theo.  Education,  3  Gray,  280; 
Att'y-Gen.  v.  Hartley,  2  J.  &  W.  382 ;  Att'y-Gen.  v.  Mansfield,  2  Russ. 
520;  Stone  v.  Framinghani,  109  Mass.  303. 

8  Att'y-Gen.  v.  Garrison,  101  Mass.  223. 

*  Att'y-Gen.  v.  College  of  \Vm.  &  Mary,  1  Ves.  Jr.  243.  And  see 
Provost  of  Edinburgh  v.  Aubery,  Amb.  236. 


358  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

charity,  courts  will  not  remove  the  persons  so  appointed,  if  the 
trustees  made  the  choice  in  good  faith  and  without  fraud  or 
corruption.! 

§  736.  Another  particular  in  which  charitable  gifts  are 
favored  by  the  law  is,  that  such  gifts  are  not  obnoxious  to  the 
common  rule  against  perpetuities.  For  public  convenience, 
the  ownership  of  property  cannot  be  suspended  for  a  long 
time,  nor  will  public  policy  allow  property  to  be  inalienable 
beyond  a  certain  period.  Thus  if  a  testator  gives  land  to  his 
heir  upon  condition  that  he  shall  not  alienate  the  same,  the 
condition  is  void  as  against  public  policy :  but  a  testator,  by 
certain  forms  of  gift,  may  tie  up  his  property  for  a  life  or 
lives  in  being,  and  twenty-one  years  and  nine  months  ;  as, 
if  he  gives  land  to  be  enjoyed  by  a  certain  person  during 
such  person's  life,  and  then  to  some  other  person  or  purpose 
for  twenty-one  years  and  nine  months,  and  then  in  fee  to  some 
person  or  persons  who  will  at  that  time  answer  a  particular 
description.  In  reference  to  the  last  form  of  gift,  it  will  be 
seen  that  such  land  cannot  be  sold  and  a  title  given  for  a  life 
and  twenty-one  years  and  nine  months,  because  until  that  time 
has  elapsed  it  cannot  be  told  with  certainty  who  will  come 
within  the  description  of  the  last  taker  ;  consequently,  though 
all  the  world  joins  in  the  conveyance,  no  title  can  be  given 
until  the  final  event  is  known.  A  testator  is  allowed  to  go 
thus  far  and  no  farther.  If  he  makes  his  gift  depend  upon 
conditions,  limitations,  or  events,  that  may  require  more  than 
a  life  or  lives  in  being  and  twenty-one  years  and  nine  months 
for  their  accomplishment,  he  has  created  what  the  law  calls 
a  perpetuity,  which  is  void,  and  the  first  taker  takes  a  fee 
discharged  of  all  attempted  limitations.'^  So  if  a  testator  ties 
up  his  property  for  a  term,  by  possibility,  longer  than  a  life 

1  Re  Story's  University  Gift,  2  De  G.,  F.  &  J.  529,  531,  540.     But  see 
In  re  Nettle's  Charity,  L.  R.  14  Eq.  434. 

2  Church  in  Brattle  St.  v.  Grant,  3  Gray,  143. 


§§  735-737.]  AS  TO  perpetuities.  359 

or  lives  in  being  and  twenty-one  years  and  nine  months,  and 
then  gives  it  over  to  a  charity,  the  gift  to  the  charity  is  void, 
because  of  the  perpetuity  in  the  first  taker.^  But  a  gift  may 
be  made  to  a  charity  not  in  esse  at  tlie  time,  to  come  into 
existence  at  some  uncertain  time  in  the  future,  provided  there 
is  no  gift  of  the  property,  in  the  first  instance,  or  perpetuity^ 
in  a  prior  taker.^  So  where  property  was  given  to  one  charity, 
to  go  over  to  another  in  a  certain  event,  it  was  allowed  to  go 
over  to  the  second  charity  after  a  lapse  of  two  Imndred  years, 
on  the  ground  that  it  was  no  more  a  perpetuity  in  one  charity 
than  in  another.^ 

§  737.  As  it  is  forbidden  to  create  perpetuities  by  common- 
law  conveyances,  so  it  is  equally  illegal  to  attempt  to  create 
perpetuities  through  the  creation  of  trusts.  A  perpetuity  will 
no  more  be  tolerated  when  it  is  covered  liy  a  trust,  than  when 
it  displays  itself  undisguised  in  a  conveyance  of  the  legal 
estate.*  Tluis  a  trust  cannot  be  created  that  will  suspend  the 
absolute  ownership  of  the  property  for  a  time  longer  than 
that  allowed  at  law.  A  perpetual  trust  cannot  be  created  for 
an  individual  and  his  heirs  in  succession  for  ever ;  ^  and 
herein  a  charity  differs,  for  a  trust  may  be  established  which 
contemplates  the  payment  of  the  income  of  a  certain  fund  to 

*  Company  of  Pewterers  v.  Christ's  Hosp.  1  Vern.  IGl ;  AttV-Gt'ii.  v. 
Gill,  2  P.  Wins.  Md ;  Wells  v.  Heath,  10  Gray,  25 ;  ComVs  of  Donations 
V.  De  Clifford,  1  Dru.  &  War.  '2oi;  Att'y-Gen.  v.  Hall,  W.  Kel.  13. 

*  Att'y-Gen.  v.  Downing,  Wllmot,  1;  Dick.  14;  Amb.  550;  Att'y-Gen. 
V.  Bowyer,  3  Ves.  714;  5  Ves.  300;  8  Ves.  256;  Att'y-Gen.  v.  Chester, 
1  Bro.  Ch.  464 ;  Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  99 ;  Sanderson 
V.  White,  18  Pick.  336. 

3  Christ's  Hosp.  v.  Granger,  16  Sim.  83;  1  Mac.  &  Gor.  533;  1  Hajl  & 
Twells,  639;  Soc.  for  Prop,  of  the  Gospel  v.  Att'y-Gen..  3  Riiss.  142; 
MfDonough  v.  McDonough,  15  How.  367 ;  Potter  v.  Thornton,  7  11.  I. 
252. 

*  Norfolk's  Case,  3  Ch.  Ca.  20-28,  35-48 ;  1  Vern.  164. 

'"  Ante,  §§  377,  400;  Thellusson  v.  Woodford,  4  Ves.  227;  11  Ves.  112; 
Hooper  v.  Hooper,  9  Cush.  122;  Thorndike  v.  Loring,  15  Gray,  391 ;  Haw- 
ley  V.  James,  5  Paige,  445 ;  W'hite  v.  Hale,  2  Cold.  77. 


360  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

some  charitable  purpose  for  ever.  Indeed,  it  is  always  hoped, 
where  funds  are  given  in  trust,  the  income  to  be  applied  to 
some  church,  almshouse,  hospital,  or  school,  that  such  insti- 
tution will  exist  indefinitely,  and  that  the  donor's  bounty  will 
be  a  perennial  spring  for  generations.^  At  the  same  time, 
it  is  to  be  observed  that  this  rule,  applied  to  charities,  does 
not  render  any  particular  property  inalienable  ;  for  the  court 
can  decree  the  sale  of  any  trust  property  when  an  exigency 
arises ;  and  even  the  soil  upon  which  a  church,  hospital, 
almshouse,  or  school-house  is  built,  can  be  sold  by  a  decree 
in  equity,  when  it  is  desirable  to  remove  from  that  particular 
place  to  another.2 

§  738.  Analogous  to  the  rule  against  perpetuities  is  the  rule 
against  accumulation,  which  does  not  permit  a  testator  to  give 
his  estate  to  trustees  to  be  accumulated  by  them  for  a  time 
longer  than  a  life  or  lives  in  being  and  twenty-one  years  and 
nine  months.  Public  policy  is  said  to  be  the  foundation  of  this 
rule.  Even  accumulations  for  such  a  limited  time  have  been 
found  inconvenient,  and  statutes  have  been  passed  in  England 

'  Franklin  v.  Armfield,  2  Sneed,  305;  Grissom  v.  Hill,  17  Ark.  483; 
Bristol  V.  Whitton,  Dwight.  Cha.  Ca.  171 ;  Magdalen  Coll.  v.  Att'y-Gen. 
6  H.  L.  Ca.  205;  Perrin  v.  Carey,  24  How.  465;  Williams  v.  Williams, 
4  Seld.  533;  King  v.  Parker,  9  Cush.  82;  Dexter  v.  Gardner,  7  Allen, 
246;  Odell  v.  Odell,  10  Allen,  1 ;  Dartmouth  Coll.  v.  Woodward,  4  Wheat. 
641;  Paschal  v.  Acklin.  27  Texas,  173 ;  Yard's  App.  64  Penn.  St.  95. 

2  Wells  V.  Heath,  10  Gray,  17;  Shotwell  v.  Mott,  2  Sandf.  Ch.  55; 
Tudor  on  Char.  298 ;  Franklin  v.  Armfield,  2  Sneed,  305 ;  Brown  v.  Meet- 
ing Street  Baptist  Society,  9  R.  I.  184 ;  Att'y-Gen.  v.  Warren,  2  Swanst. 
291 ;  Att'y-Gen.  v.  Newark,  1  Hare,  395,  400 ;  Att'y-Gen.  v.  Kerr,  2  Beav. 
420;  Att'y-Gen.  v.  Hungerford,  8  Bligh,  437,  463;  Att'y-Gen.  v.  Bretting- 
ham,  3  Beav.  91 ;  In  re  Suir  Island  Charity  School,  3  Jo.  &  La.  171 ;  In  re 
Parke's  Charity,  12  Sim.  329 ;  Ex  parte  Overseers  of  the  Poor,  Ecolesalt 
Bierlow,  13  Eng.  L.  &  Eq.  145,  16  Beav.  297  ;  Att'y-Gen.  v.  Biddulph,  39 
Eng.  L.  &  Eq.  512;  Stanley  v.  Colt,  5  Wall,  119;  Sohier  v.  Trinity 
Church,  109  Mass.  1 ;  Yard's  App.  64  Penn.  St.  95 ;  Gram  v.  Prussia,  &c. 
Soc.  36  N.  Y.  161 ;  Burton's  App.  57  Penn.  St.  203;  Pine  St.  Soc.  v.  Weld, 
12  Gray,  170;  Chamberlayne  v.  Brackett,  L.  R.  8  Ch.  210.  See  Thorp  v. 
Fleming,  1  Houst.  580. 


§§  737, 738.]  ACCUMULATION.  361 

and  in  several  of  the  United  States  establishing  a  still  shorter 
period  during  which  trust  estates  may  accumulate.  In  all 
those  States  where  there  are  statutes  limiting  the  time  of  accu- 
mulation, charities  will  be  governed  by  the  statute,  unless  they 
are  specially  excepted  from  its  operation.^  But  where  there 
are  no  statute  provisions,  a  trust  to  accumulate  for  charitable 
purposes  will  not  be  held  to  be  within  the  rule.  There  is  no 
limit  named  beyond  which  such  accumulations  cannot  go ;  but 
a  bequest  of  a  liundred  dollars  to  be  paid  into  a  savings-bank 
yearly  for  fifty  years  from  the  income  of  real  estate,  to  be  accu- 
mulated during  the  fifty  years  by  adding  interest  to  principal 
semiannually,  and  at  the  expiration  of  the  term  to  be  appro- 
priated to  a  home  for  indigent  old  people,  was  held  to  l)e  a  good 
devise,  and  not  within  the  rule  against  accumulations.^  But  if 
an  estate  given  to  trustees  for  charity  is  once  vested  in  them 
for  a  lawful  purpose,  all  unlawful  conditions,  limitations,  pow- 
ers, trusts,  or  restraints  annexed  thereto,  as  directions  for  the 
management  of  the  fund,  and  not  of  the  essence  of  the  gift, 
will  fall  away  and  be  simply  void,  leaving  the  estate  still  vested 
in  the  trustees  to  be  managed  in  a  legal  manner  for  the  pur- 
poses of  the  charity. 3  As  where  a  testator  gave  a  fund  to  a 
town  in  its  corporate  capacity  to  establish  a  school,  on  condi- 
tion that  the  children  of  nine  families  named  were  excluded  for 
one  hundred  years,  the  court  held  the  bequest  a  good  charitable 

'  Ante,  §§  392-400;  Martin  v.  Marghara,  14  Sim.  230;  Kilpatrick  v. 
Johnson,  15  N.  Y.  322. 

2  Odell  V.  Odell,  10  Allen,  1;  Philadelphia  v.  Girard,  4.5  Penn.  St.  1; 
Williams  v.  Williams,  4  Selden,  .537;  State  v.  Girard,  2  Ired.  Ch.  210.  A 
different  rule  was  held  in  Hillyard  i'.  Miller,  10  Penn.  St.  326;  but  the  case 
was  overruled  in  the  case  of  Philadelphia  v.  Girard.  See  Odell  v.  Odell, 
sup.,  for  a  full  and  able  discussion  of  the  cases.  University  v.  Yarrow, 
1  De  G.  &  J.  79. 

3  Philadelphia  v.  Girard.  45  Penn.  St.  1 ;  Williams  v.  Williams,  4  Sold. 
538.  Since  the  case  of  Williams  v.  Williams,  the  courts  of  New  York 
have  subjected  charities  to  all  the  rules  and  the  statute  against  perpetuities. 
Levy  V.  Levy,  33  N.  Y.  97;  Bascomb  v.  Albertson,  34  N.  Y.  604;  Wilson 
V.  Lynt,  30  Barb.  124;  6  How.  (N.  Y.)  348 ;  University  v.  Yarrow,  1  DeG. 
&  J.  79;  Wetmore  v.  Parker,  7  Lansing,  121. 


362  TRUSTS    FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

beqiicst  for  a  school,  and  that  it  vested  in  the  town  in  its  cor- 
porate capacity  ;  but  tliat,  as  a  town  could  not  make  distinctions 
between  its  citizens  in  administering  any  public  property  which 
it  had  a  right  to  hold,  the  limitations  and  conditions  upon  the 
gift  fell  away  from  it  as  illegal  and  repugnant.^ 

§  739.  Another  particular  in  which  courts  have  favored 
charities  was  to  supply  all  defects  in  conveyances  or  bequests 
to  charitable  uses ;  as,  where  tlie  will  of  a  married  woman, 
utterly  void  at  law,  was  held  good  as  an  appointment  to  chari- 
table uses  ;  and  a  will,  utterly  void  before  the  statute,  was  held 
to  be  made  good  by  the  passage  of  the  statute ;  and  though  the 
statute  of  Hen.  VIII.  forbids  devises  of  land  to  corporations, 
yet  such  wills  were  held  good,  as  appointments.^  This  doctrine 
has  not  of  late  received  the  cordial  assent  of  the  English  courts  ;  ^ 
and,  as  it  never  prevailed  in  America,  it  is  not  necessary  to 
state  it  in  detail.*  Courts  will  supply  defects  in  conveyances 
to  charitable  purposes  only  so  far  as  relates  to  uncertainty  in 
the  trustees  or  in  the  cestids  que  trust,  as  before  stated. 

§  740.  There  are  many  English  cases  upon  marshalling  the 
assets  of  a  testator  for  the  payment  of  debts,  legacies,  and 
charitable  bequests.  The  statute  of  mortmain  has  been  con- 
strued to  forbid  the  payment  of  charitable  legacies  from  the 

^  Nourse  v.  Merriam,  8  Cusb.  11 ;  University  v.  Yarrow,  1  De  G.  & 
J.  79. 

*  Duke,  84,  85;  Bridgman's  Duke,  355;  Damon's  Case,  Moore,  822; 
Smith  V.  Stowell,  1  Ch.  Ca.  195;  Collinson's  Cai^e,  Hob.  136  ;  Atfy-Gen.  v. 
Combe,  2  Ch.  Ca.  18;  Griffith  Flood's  Case,  Hob.  136;  Christ's  College, 
1  W.  Black.  90;  Att'y-Gen.  v.  Bowyer,  3  Ves.  Jr.  714;  1  Dru.  &  War. 
308;  Mills  v.  Farmer,  1  Mer.  55;  Att'y-Gen.  v.  Rye,  2  Vern.  453;  Rivett's 
Case,  Moore,  890;  Att'y-Gen.  v.  Burdett,  2  Vern.  755;  Christ's  Hospital  v. 
Hames,  Bridgman's  Duke,  371;  Tuffuell  v.  Page,  2  Atk.  37;  Fay  v. 
Slaughter,  Pr.  Ch.  16;  Kenson's  Case,  Hob.  136. 

'  Ante,  §  88;  Moggridge  v.  Thackwell,  7  Ves.  87;  Jenner  v.  Hooper, 
Pr.  Ch.  389;  Att'y-Gen.  v.  Bain,  Pr.  Ch.  271;  Adlington  v.  Cann,  3  Atk. 
141. 

*  Harvard  Coll.  v.  Soc.  for  Promoting  Education,  3  Gray,  283. 


§§  738-741.]  FOREIGN    CHARITIES.  363 

proceeds  of  the  sale  of  real  estate,  if  the  will  was  made  within 
a  year  of  the  death  of  the  testator.  This  circumstance,  with 
other  peculiarities  in  the  English  law,  has  given  rise  to  much 
litigation,  and  to  many  nice  distinctions  and  rules  which  arc 
inapplicable  to  the  jurisprudence  of  America.  Here  the  debts 
of  a  deceased  person  must  first  be  paid  ;  and  the  entire  estate, 
real  and  personal,  is  held  for  that  purpose.  Legacies  arc  then 
paid  out  of  the  personal  assets,  or  out  of  the  real  estate  if  the 
personal  fails  ;  and  they  are  charged  upon  the  personalty.  If 
the  fund  is  not  sufficient  for  the  payment  of  all  in  full,  they 
must  all  abate  in  proportion,  whether  they  are  charitable  lega- 
cies or  otherwise. 1 

§  741.  Ijcquests  to  be  paid  over  to  trustees  in  a  foreign 
country,  for  tlic  establishment  in  such  country  of  a  charitable 
institution,  will  be  paid  over  to  such  trustees,  by  order  of 
court,  to  be  administered  by  them  under  the  jurisdiction  of  the 
courts  of  their  own  country .^  But  if  the  bequest  is  contrary  to 
law  in  the  country  where  it  is  made,  or  contrary  to  public 
policy,  as  a  bequest  in  England  to  found  nunneries  in  a  foreign 
country,  it  is  void,  and  the  court  will  not  order  it  to  be  paid 
over.'^  A  trust  for  charity,  so  created  by  a  testator  in  his  will 
as  to  1)0  void  in  the  State  where  it  is  created,  will  be  void, 

^  It  is  not  necessary  to  pursue  this  subject  further.  The  reader  will  find 
the  cases  carefully  collected  and  discussed  in  2  Story,  Eq.  Jur.  §§  1180, 
1180  a,  1  Jarman  on  Wills,  213  (3d  Eng.  ed.). 

*  Washburn  v.  Sewell,  9  Met.  280 ;  Provost  of  Edinburgh  v.  Aubery, 
Amb.  33G ;  CoUyer  v.  Burnett,  Taml.  79;  Att^-Gen.  v.  Lepine,  2  Swans. 
181;  19  Ves.  389;  ChambeHain  v.  Chamberlain,  43  N.  Y.  424;  Silcox  v. 
Harper,  32  Ga.  G39 ;  Mitford  v.  Reynolds,  1  Phil.  185;  Emery  v.  Hill, 
1  Russ.  112;  Mayor  of  Lyons  v.  East  India  Co.  1  Moore,  P.  C.  273;  Minet 
V.  Vulliamy,  1  Russ.  113,  n.;  Att'y-Gen.  v.  London,  3  Bro.  Ch.  171;  1  Ves. 
Jr.  243;  Oliphant  v.  Hendrie,  1  Bro.  Ch.  571,  n. ;  Soc.  for  Prop.  Gospel  v. 
AttV-Gen.  3  Russ,  142 ;  Campbell  v.  Radnor,  1  Bro.  Ch.  171 ;  Att'y-Gen. 
V.  Chester,  1  Bro.  Ch.  444;  Curtis  v.  Hutton,  14  Ves.  537;  Mackintosh  v. 
Townsend,  IG  Ves.  330. 

'  I)e  Garcin  v.  Lamson,  4  Ves.  433,  n.  ;  De  Thenimines  v.  De  Bonneval, 
5  Russ.  292.     But  see  Chamberlain  v.  Chamberlain,  43  N.  Y.  424. 


364  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

although  it  is  a  legal  trust  in  the  State  where  the  charity  is  to 
be  established.^  So  if  the  trustees  in  the  foreign  country  refuse 
to  receive  the  funds,  the  trust  will  be  void,  and  the  money  will 
go  to  the  next  of  kin  ;  as,  where  a  devise  was  made  in  England 
to  the  President  and  Vice-President  of  the  United  States  and 
the  Governor  of  Pennsylvania,  for  establishing  a  college  in 
Pennsylvania,  for  the  purposes,  among  others,  of  vindicating 
the  rights  of  the  colored  people  to  an  equality  with  whites,  the 
trustees  named  refusing  to  receive  the  funds  and  execute  the 
trust,  it  was  held  to  have  failed,  the  court  having  no  power  to 
enforce  its  performance  in  a  foreign  jurisdiction .^  Mr.  Smith- 
son,  an  Englishman,  gave  the  funds  for  the  Smithsonian 
Institution  at  Washington  by  his  last  will,  and  they  were  paid 
over  upon  the  suit  of  the  President  of  the  United  States  v. 
Drummond,  executor.^  If  there  is  sufficient  reason  arising 
out  of  the  terms  of  the  will  or  otherwise,  the  court  can  order 
the  principal  fund  to  be  invested  within  their  jurisdiction,  and 
the  income  only  to  be  paid  over  to  the  foreign  trustees.* 

§  742.  The  trustees  of  a  charity  frequently  procure  an  act 
of  incorporation,  in  order  to  carry  out  the  intention  of  their 
donor  with  more  convenience.  Care  should  be  taken  in  such 
cases  that  the  act  of  incorporation  does  not  alter  or  change  the 
true  objects  of  the  donor.  These  charitable  corporations  are 
called  eleemosynary  corporations  ;  and  the  trustees  of  such  a 
corporation  have  such  vested  rights  under  the  gift  of  the  donor 
and  the  act  of  incorporation,  that  they  cannot  be  controlled  by 
subsequent  legislation   made   to   affect  that  particular  case.^ 

'  Bascomb  v.  Albertson,  34  N.  Y.  584. 

*  New  V.  Bonaker,  L.  R.  4  Eq.  654;  Levy  v.  Levy,  33  N.  Y.  97. 
8  Cited  in  Whicher  v.  Hume,  7  H.  L.  Ca.  124. 

*  Att'y-Gen.  v.  Lepine,  2  Swans.  181;  Att'y-tl^en.  v.  Sturge,  19  Beav. 
697. 

^  Dartmouth  College  v.  Woodward,  4  Wheat.  518 ;  see  Webster's 
speech,  5  Webster's  Works,  462,  and  cases  cited ;  St.  John's  College 
V.  State,  15  Md.  330 ;  Brown  v.  Hummel,  6  Penn.  St.  86 ;  State  v.  Adams, 


§  741,742.]  ACTS   OF  INCORPORATION.  365 

But  the  corporation  may  be  enlarged  and  still  retain  its 
authority  over  the  original  charity.^  On  the  institution  of 
such  a  charity,  a  visitatorial  jurisdiction  arises  of  common  right 
to  the  founder  and  his  heirs,  or  to  those  whom  the  founder  has 
substituted  in  the  place  of  himself  and  his  heirs.^  The  duty 
of  the  visitor  is  to  hear  and  determine  all  differences  of  the 
members  of  the  company  among  themselves,  and  generally  to 
superintend  the  internal  government  of  the  body,  and  to  see 
that  all  rules  and  orders  of  the  corporation  are  observed.^ 
The  visitor  must  take,  as  his  guide,  the  regulations  or  statutes 
originally  propounded  by  the  founder ;  ^  and  so  long  as  he  does 
not  exceed  his  province,  his  decision  is  final,  and  cannot  be 
questioned  by  way  of  appeal.^  With  this  visitatorial  power, 
the  Court  of  Chancery  has  nothing  to  do :  it  is  only  as  respects 
the  administration  of  the  corporate  property  that  the  court  has 
any  jurisdiction.  Chancery  cannot  interfere  with  the  elections 
or  any  other  internal  arrangements  of  such  corporations, 
although  they  may  be  irregular ;  ^  but  whenever  there  is  any 

4  Mo.  570.  As  an  illustration  of  an  act  incorporating  the  trustees  of  a 
charity,  see  c.  119  of  the  Acts  of  Massachusetts,  1868. 

'  Girard,  &c.  v.  Philadelphia,  7  Wall.  1 ;  Mclntire  v.  Zanesvillo,  17  Ohio 
St.  352. 

"  Eden  v.  Foster,  2  P.  Wms.  326;  Att'y-Gen.  v.  Gaunt,  3  Swans.  148. 

'  Phillips  V.  Bury,  Skin.  478;  Att'y-Gen.  r.  Crook,  1  Keen,  126;  Att'y- 
Gen.  V.  York,  2  R.  &  M.  468;  In  re  Birmingham  School,  Gilb.  Eq.  R.  180. 

*  St.  John's  College  v.  Toddington,  1  Burr.  200 ;  Att'y-Gen.  v.  Locke,  3 
Atk.  165 ;  Att'y-Gen.  v.  Master  of  Catharine  Hall,  Jac.  392. 

*  Att'y-Gen.  v.  Moore,  4  Green  Ch.  503;  Li  re  Christ's  Church,  L.  R. 
1  Ch.  126;  Att'y-Gen.  v.  Foundling  IIosp.  2  Ves.  Jr.  47;  In  re  Chertsey 
Market,  6  Price,  272 ;  Att'y-Gen.  v.  Locke,  3  Atk.  165 ;  Ex  parte  Berk- 
hampstead  School,  2  Ves.  &  B.  138 ;  Poor  of  Chelmsford  v.  Mildmay,  Duke, 
83  ;  Atty-Gen.  v.  Clarendon,  17  Ves.  490 ;  Eden  v.  Foster,  2  P.  Wms.  326  ; 
Att'y-Gen.  v.  Dixie,  13  Ves.  533 ;  Att'y-Gen.  v.  Bedford,  2  Ves.  505 ;  5 
Sim.  578;  Att'y-Gen.  v.  Browne's  Hosp.  17  Sim.  137;  Att'y-Gen.  v.  Ded- 
ham  School,  23  Beav.  350;  Dougars  v.  Rivaz,  28  Beav.  233;  Att'y-Gen.  v. 
Dulwich  College,  4  Beav.  255. 

*  Att'y-Gen.  v.  Clarendon,  17  Ves.  498;  Wliiston  v.  Rochester,  7  Hare, 
632 ;  Att'y-Gen.  v.  Dixie,  13  Ves.  519 ;  Att'y-Gen.  v.  Middleton,  2  Ves. 
327;  Att'y-Gen.  v.  Dulwich  College,  4  Beav.  255;  Att'y-Gen.  v.  Magdalen 


866  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

complaint  of  a  perversion  of  the  funds  of  the  institution,  equity 
will  immediately  interfere  and  correct  and  remedy  the  abuse 
in  the  same  manner  that  it  proceeds  against  individual 
trustees.^ 

§  743.  If  an  estate  is  given  to  an  old  corporation,  it  is  not 
regarded  in  the  same  light  as  the  property  with  which  the 
charity  was  originally  endowed,  and  the  new  gift  will  not  be 
subject  to  the  old  visitatorial  power,  unless  such  is  the  plain  or 
implied  intention  of  the  donor.^  If  the  property  is  given 
generally,  and  no  special  purpose  is  named,  the  donor  will  be 
presumed  to  intend  that  the  property  shall  be  regulated  by  the 
general  rules  of  the  corporation  ;  ^  but  if  a  particular  trust  is 
annexed  to  the  gift  in  the  hands  of  the  corporation,  the  visita- 
torial power  of  the  original  founder  will  be  excluded,  and  the 
court  will  treat  the  corporation  in  respect  to  this  fund  as  an 
ordinary  trustee,  or  as  an  individual  intrusted  with  the  fund 
for  a  particular  purpose.*  If  a  private  person  founds  a  charity, 
and  the  crown  grants  a  charter,  the  presumption  is  that  the 
crown  intended  to  carry  out  the  intentions  of  the  donor,  and 
the  jurisdiction  of  the  Court  of  Chancery  will  be  continued.^ 

College,  10  Beav.  402 ;  AttV-Gen.  v.  Bedford,  10  Beav.  505  ;  In  re  Bedford 
Charity,  5  Sim.  578. 

1  Van  Houten  v.  First  Reformed  Dutch  Church,  2  Green  Ch,  137; 
Brunnenmeyer  v.  Buhre,  82  111.  183 ;  Att'y-Gen.  v.  St.  Cross  Hosp.  17 
Beav.  435 ;  Att'y-Gen.  v.  Foundling  Hosp.  2  Ves.  Jr.  48 ;  Att'y-Gen.  v. 
Clarendon,  17  Ves.  499. 

*  Green  v.  Rutherforth,  1  Ves.  472;  Corp.  of  Sons  of  Clergy  v.  Mose, 
9  Sim.  610;  Phillips  v.  Bury,  1  Ld.  Raym.  5;  Comb.  2G5 ;  Holt,  715;  1 
Show.  360;  4  Mod.  106;  Skin.  447. 

^  Ibid. ;  Ex  parte  Inge,  2  R.  &  M.  596;  Att'y-Gen.  v.  Clare  Hall,  3  Atk. 
675 ;  Hadley  v.  Hopkins,  14  Pick.  240. 

■*  Green  v.  Rutherforth,  1  Ves.  462 ;  Corp.  Sons  of  Clergy  v.  ]\Iose,  9 
Sim.  610. 

^  Att'y-Gen.  v.  Dedham  School,  23  Beav.  350.  See,  also.  Ex  jyarte 
Wrangham,  2  Ves.  Jr.  609 ;  Att'y-Gen,  v.  Clarendon,  17  Ves.  498 ;  Att'y- 
Gen.  V.  Black,  11  Ves.  191 ;  Case  of  Queen's  College,  Jac.  1 ;  King  v.  St. 
Catharine's  Hall,  4  T.  R.  233-244 ;  lie  Queen's  College,  5  Russ.  64 ;  Re 
University  College,  2  Phil.  521. 


§§  742-744.]  NO    REVERSION   TO    THE    HEIR.  367 

If  a  church  has  funds,  a  part  of  which  was  contributed  for  the 
poor,  and  the  balance  for  religious  purposes,  and  the  funds  have 
become  mingled,  the  whole  fund  will  not  be  devoted  to  the 
public  charity ;  but  as  accurate  a  separation  as  possible  will  be 
made.i  If  the  legislature  makes  a  grant  of  land  to  a  charitable 
corporation,  for  a  school  or  college  or  for  a  religious  or  chari- 
table purpose,  such  grant  cannot  be  repealed.^  But  the  legis- 
lature may  change  the  trustees  of  a  charity  conferred  upon  a 
municipal  corporation.^ 

§  744.  If  the  trustees  of  a  charity  abuse  the  trust,  misemploy 
the  charity  fund,  or  commit  a  breach  of  the  trust,  the  property- 
does  not  revert  to  the  heir  or  legal  representative  of  the  donor, 
unless  there  is  an  express  condition  of  the  gift,  that  it  shall 
revert  to  the  donor  or  his  heirs,  in  case  the  trust  is  abused  ;* 
but  the  redress  is  by  bill  or  information  by  the  attorney-general 
or  other  person  having  the  right  to  sue.  If  a  good  public 
charity  is  created  by  gifts  upon  condition  or  with  limitations, 
or  by  gifts  for  particular  purposes,  or  to  a  certain  end,  the  heir 
cannot  defeat  the  charity  by  reason  of  a  breach  of  the  trust  or 
perversion  of  the  charity  ;  but  the  courts  upon  proper  proceed- 
ing will  correct  all  abuses,  and  restore  the  charitable  gift  to 
its  original  purpose.  Heirs  and  personal  representatives  of  a 
donor  have  no  beneficial  interest,  reverting  or  accruing  to  them- 
selves, from  the  breach  or  non-execution  of  a  trust  for  a  chari- 
table use.^ 

1  Att>Gen.  v.  Old  South  Soc.  13  Allen,  474. 

2  University  v.  Fay,  2  Ilayw.  310;  Tcrrett  v.  Taylor,  9  Crancb.  43; 
Pawlett  V.  Clark,  9  Cranch,  292. 

8  Philadelphia  v.  Vox,  64  Penii.  St.  1G9 ;  Stone  v.  Framiugham,  109 
Mass.  303. 

*  Brown  v.  Meeting  St.  Bap.  Soc.  9  11.  I.  177. 

*  Sanderson  v.  White,  18  Pick.  328  ;  Dublin  Case,  38  N.  II.  459  ;  Cha- 
pin  V.  School  District,  35  N.  H.  445;  Hadley  v.  Hopkins,  14  Pick.  241; 
Heriot's  Hospital  v.  Ross,  12  CI.  &  Fin.  507;  5  Bell  App.  Cas.  37  ;  Pier- 
son  V.  Thompson,  1  Edw.  Ch.  212;  Benett  v.  Wyndham,  4  De  G.,  F.  &  J. 
269  ;  Duncan  v.  Findlater,  6  CI.  &  Fin.  894;  Mersey  Docks,  &c.  v.  Gibbs, 


368  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

§  745.  Ordinary  private  trusts  are  not  subject  to  the  statute 
of  limitations  like  other  interests  ;  for,  so  long  as  the  relation 
of  trustee  and  cestui  que  trust  continues,  no  length  of  time  can 
bar  the  rights  of  the  beneficiary,  as  the  rights  of  a  creditor  may 
be  barred.  But  where  the  relation  is  denied,  and  circumstances 
have  occurred  that  render  it  impossible  to  do  equity  between 
the  parties,  lapse  of  time  may  be  a  bar.i  Still  less  will  the 
statute  of  limitations  apply  to  a  charitable  trust,  there  being 
"  no  limitation  against  God  and  religion."  ^  Where  a  corpora- 
tion held  the  property  of  a  charity  for  one  hundred  and  fifty 
years  adversely  under  a  deed  of  purchase,  but  with  notice  of 
the  charitable  use,  it  was  decreed  that  the  property  should  be 
reconveyed  upon  the  original  trusts  ;  ^  nor  will  lapse  of  time  be 
allowed  to  establish  any  perversion  or  abuse  of  a  charitable 
trust,  if  the  original  purpose  can  be  clearly  determined.*  But 
great  lapse  of  time  is  frequently  a  controlling  element  in  dis- 
posing of  charity  suits  ;  for  if  a  charity  has  been  administered 
for  a  long  time  without  question,  the  court  will  not  interfere 
to  change  it  without  conclusive  evidence  that  the  charity  has 
been  perverted.^     A  continued  use,  with  the  assent  of  all  par- 

11  H.  L.  Cas.  686;  L.  R.  1  H.  L.  Cas.  93;  Reformed  Dutch  Churchy. 
Mott,  7  Paige,  77  ;  Good  v.  McPherson,  5  Mo.  126.  See  also  Att'y-Gen. 
V.  Wax  Chandlers'  Co.  L.  R.  6  H.  L.  Ca.  1,  where  it  was  said  that  very  little 
stress  could  be  laid  upon  the  word  "  condition  "  in  a  bequest  to  a  charity, 
as  it  may  mean  simply  "  intent  and  purpose,"  and  may  be  employed  to 
create  a  trust,  and  nothing  more.  But  see  Henderson  v.  Hunter,  59  Penn. 
St.  335. 

^  Prevost  V.  Gratz,  6  Wheat.  481 ;  Wedderburn  v.  Wedderburn,  4  My. 
&  Cr.  41 ;  Portlocke  v.  Gardner,  1  Hare,  594 ;  Bridgman  v.  Gill,  24  Beav. 
302;  Michoud  v.  Girod,  4  How.  561;  Att'y-Gen.  ?'.  Fishmongers'  Co.  5 
My.  &  Cr.  16 ;  Knight  v.  Bowyer,  2  De  G.  &  J.  421 ;  Watson  v.  Saul,  5 
Jur.  (n.  s.)  404  ;  Att'y-Gen.  v.  Bristol,  2  J.  &  W.  321  ;  Shelford,  498. 

•'  Att'y-Gen.  v.  Coventry,  2  Vern.  399  ;  Att'y-Gen.  v.  Bristol,  2  J.  &  W. 
321;  Att'y-Gen.  v.  Exeter,  Jac.  448;  Att'y-Gen.  v.  Brewers' Co.  1  Mer. 
498 ;  Incorp.  Soc.  v.  Richards,  1  Con.  &  Law.  58 ;  1  Dru.  &  War.  258. 

8  Att'y-Gen.  v.  Christ's  Hosp.  3  My.  &  K.  344. 

*  Att'y-Gen.  v.  Munro,  2  De  G.  &  Sm.  122;  Mulligan  v.  Mitchell,  3  M. 
&  Cr.  73;  Att'y-Gen.  v.  Beverly,  6  De  G.,  M.  &  G.  256. 

*  Att'y-Gen    v.  Rochester,  5  De  G.,  M.  &  G.  822;  Att'y-Gen.  v.  Ref. 


§§  745,  746.]       STATUTE   OF    LTx^IITATIONS  —  PLEADING.  369 

ties,  for  a  great  length  of  time  must  have  an  influence  in  the 
construction  of  all  written  instruments,  especially  if  there  is 
any  doubt  as  to  their  true  meaning.^  If  such  use  was  contem- 
poraneous with  the  foundation,  and  has  continued  uninterrupted 
and  uncorrected  for  a  great  length  of  time,  where  there  was 
opportunity  for  complaint  and  correction,  the  arrangement  will 
not  be  disturbed  .2  A  statute  now  bars  the  attorney-general 
from  interfering,  after  an  acquiescence  of  twenty  yeai-s.^  On 
the  same  principle,  long-continued  use  in  applying  the  funds  of 
a  religious  society  to  the  teaching  of  a  particular  form  of  doc- 
trine will  have  great  weight  in  giving  a  construction  to  the 
instrument  under  which  the  funds  were  settled.*  It  was  held, 
in  Attorney-General  v.  Federal  Street  Meeting-house,  that  a 
trust  to  maintain  public  worship  in  the  Presbyterian  form,  in  a 
particular  meeting-house,  might  be  terminated  by  the  unani- 
mous consent  of  all  the  worshippers  and  pew-holders  of  that 
house,  and  that  where  there  had  been  a  use  of  the  funds  for 
forty  years  under  a  claim  of  right,  adversely  to  the  first 
use,  it  was  too  late  to  attempt  to  restore  the  funds  to  the  origi- 
nal use.^ 

§  746.  In  a  private  suit  in  equity,  whether  to  enforce  or 
regulate  a  trust,  or  to  obtain  any  other  private  redress,  the 
pleadings  must  be  so  framed  that  a  decree  can  be  made  upon 

Prot.  Dutch  Church,  33  Barb.  303;  Att'y-Gen.  v.  St.  John's  IIosp.  11  Jur. 
(n.  s.)  629 ;  Att'y-Gen.  v.  Old  South  Soc.  13  Allen,  474. 

1  Att'y-Gen.  v.  Rochester,  o  De  G.,  M.  &  G.  822  ;  Att'y-Gen.  v.  Bev- 
erly, 6  De  G.,  M.  &  G.  268  ;  Att'y-Gen.  v.  Bristol,  2  J.  &  W.  321  ;  In  re 
Chertsey  Market,  6  Price,  261-285;  6  H.  L.  Cas.  189. 

*  Att'y-Gen.  v.  Skinners'  Co,  5  Sim.  596  ;  Att'y-Gen.  v.  Brazen  Nose 
College,  2  CI.  &  Fin.  295  ;  Att'y-Gen.  v.  Winsor,  6  Jur.  (x.  s.)  833;  Att'y- 
Gen.  V.  Catharine  Hall,  Jur.  381;  Mayor  of  South  Molton  v.  Att'y-Gen. 
27  Eng.  L.  «&  Eq.  17 ;  Att'y-Gen.  v.  Coventry,  2  Vern.  397  ;  Att'y-Gen.  v. 
Scott,  1  Ves.  413. 

3  3  &  4  Wm.  IV.  c.  27 ;  Att'y-Gen.  v.  Payne,  27  Beav.  168. 

*  Dublin  Case,  38  N.  II.  459. 

5  Att'y-Gen.  v.  Federal  Street  Meeting-bouse,  3  Gray,  1. 
VOL.  II.  24 


370  TEUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

the  statement  in  the  bill  or  answer,  and  upon  the  prayer  for 
relief,  if  the  plaintiff  prevails  ;  but  in  suits  for  establishing, 
regulating,  controlling,  or  correcting  charitable  trusts,  courts 
disregard  all  technicalities.  If  the  case  is  brought  before  the 
court  by  bill  or  information,  it  takes  jurisdiction  over  the  ad- 
ministration of  the  charity,  and  makes  the  proper  orders  and 
decrees  for  the  right  administration  of  the  fund,  whether  the 
pleadings  are  formal  or  informal,  and  whether  the  proper  relief 
is  prayed  for  or  not.^  In  charity  cases,  the  most  expeditious  and 
least  expensive  methods  should  be  adopted  ;2  and  a  proper 
decree  for  relief  will  be  made,  although  relief  of  an  entirely 
different  character  is  prayed  for.^  Courts  are  not  bound  by  the 
strict  rules  of  practice  in  granting  injunctions  or  stay  of  pro- 
ceedings at  law  in  such  cases.*  It  cannot  be  objected  to  a 
proceeding  by  the  attorney-general  in  equity,  in  the  matter  of 
a  charity,  that  there  is  an  adequate  remedy  at  law.*^  But  if 
there  are  any  such  informalities  in  the  record  as  will  be  preju- 
dicial to  the  defendants,  the  court  will  not  proceed  until  such 
informalities  are  corrected.^  The  only  manner  in  which  courts 
can  administer  charities  is  to  give  directions  to  the  trustees ; 
but  courts  will  not  retain  an  information  in  order  to  make 
decrees  from  time  to  time.'^  The  proper  method  is  to  apply 
anew.  But  in  one  case  where  an  information  charged  a  state 
of  facts  inconsistent  with  the  true  state  of  the  case  as  set  forth 

1  Att'y-Gen.  v.  Hartley,  2  J.  &  W.  370;  Att'y-Gen.  v.  Jack'son,  11  Ves. 
372  ;  Att'y-Gen.  v.  Whitely,  14  Ves.  241 ;  Att'y-Gen.  v.  Stamford,  2  Swans. 
591;  Att'y-Gen.  v.  Jeans,  1  Atk.  355;  Att'y-Gen.  v.  Brooks,  13  Ves.  318; 
Att'y-Gen.  v.  Smart,  1  Ves.  72 ;  Att'y-Gen.  v.  Oglander,  1  Ves.  Jr.  246 ; 
Att'y-Gen.  v.  Bucknall,  2  Atk.  328;  Alt'y-Gen.  v.  Middleton,  2  Ves. 
327  ;  Att'y-Gen.  v.  Brereton,  2  Ves.  425;  Att'y-Gen.  v.  Parker,  1  Ves.  48; 
Att'y-Gen.  v.  Vivian,  1  Russ.  226. 

2  Rochester  v.  Att'y-Gen.  4  Bro.  P.  C.  643. 

3  Att'y-Gen.  v.  Whitely,  14  Ves.  241. 
■*  Att'y-Gen.  v.  Pearson,  3  Mer.  396. 
6  Att'y-Gen.  v.  Galway,  1  Moll.  95. 

6  Att'y-Gen.  v.  Warren,  2  Swans.  310. 

■^  Att'y-Gen.  v.  Haberdashers'  Co.  1  Ves.  Jr.  295. 


§§  746, 747.]  COSTS.  .371 

in  the  aiwwer,  and  the  relators  set  the  case'  down  for  hearing 
without  amendment,  with  a  prayer  for  relief  founded  upon  an 
untrue  statement  of  the  case,  and  without  having  applied  to  the 
trustees  to  correct  the  alleged  abuse,  the  information  was  dis- 
missed with  costs,  although  some  relief  might  have  been  granted 
upon  a  proper  statement  of  the  case,  and  upon  fair  conduct  to- 
wards the  trustees.^  The  parties  to  be  bound  by  the  decree 
should  be  made  parties  to  the  suit  at  the  time  the  decree  is 
made.  This  is  a  formality  that  will  not  be  dispensed  with ;  as, 
where  during  the  pendency  of  a  suit  new  trustees  in  part  had 
been  chosen,  but  had  not  been  made  parties  at  the  time  the  de- 
cree was  entered,  upon  a  new  information  brought  to  enforce  the 
decree,  the  new  trustees,  though  a  minority  of  the  number,  were 
adjudged  not  to  be  bound  by  the  decree  ;  and  they  were  allowed 
to  plead  other  facts  to  show  that  the  decree  ought  not  to  be 
carried  into  effect  against  any  of  the  trustees.^ 

§  747.  Courts  of  equity  have  entire  control  over  the  matter 
of  costs  between  the  parties  to  a  private  suit.  Costs  in  all 
cases  in  equity  are  within  the  sound  discretion  of  the  court, 
though  they  are  usually  allowed  to  the  prevailing  [)arty.^  If  a 
suit  arises  between  the  trustees  of  a  charity  fund  and  strangers, 
the  ordinary  rules  as  to  costs  will  be  applied,  and  if  there  is  a 
decree  against  the  trustees  they  may  be  ordered  to  pay  taxable 
costs  as  between  parties  ;"*  but  if  it  was  a  proper  suit  for  the 
trustees  to  prosecute  or  defend,  they  will  be  allowed  the  costs 
so  paid  by  them,  together  with  reasonable  counsel  fees,  in  their 
accounts.^  Where  a  suit  arises  between  the  heir  and  the 
trustees  whether  there  is  a  proper  bequest  to  a  charitable  use, 

1  Att'y-Gen.  v.  Grocers'  Co.  1  Keen,  506. 

2  Att'y-Gen.  v.  Foster,  13  Sim.  262;  2  Hare,  81. 

'  Twisleton  v.  Thelwell,  Ilanl.  165;  Uvedale  v.  Uvedale,  3  Atk.  119; 
Bartlctt  V.  Johnson,  9  Allen,  537. 

*  Burgess  v.  Wheate,  1  Eden,  251;  Edwards  v.  Harvey,  G.  Cooper,  40; 
Hill  V.  Morgan,  2  iMoll.  460;  Elsey  v.  Lutyens,  8  Hare,  1(;4;  lluslileigh  v. 
Master,  1  Ves.  Jr.  201;  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326;  Mohun  v. 
Mohun,  1  Swans.  201.  ^  Hill  on  Trustees,  551. 


372  TRUSTS   FOR  CHARITABLE   USES.  [CHAP.  XXIII. 

and  whether  the  charity  can  be  established  ;  or  where  a  suit 
arises  between  the  trustees  and  the  cestuis  que  trust  if  there  are 
any  that  can  come  into  court ;  or  the  attorney-general  and  the 
trustees  as  to  the  establishing  and  administering  of  the  charity, 
—  costs  will  be  allowed  to  all  parties,  together  with  reasonable 
counsel  fees  or  costs  as  between  solicitor  and  client,  out  of  the 
charity  fund  or  estate. ^  But  the  allowance  of  costs  will  depend 
upon  the  question,  whether  the  issues  raised  were  fit  and  proper 
to  be  raised  and  determined  by  the  court.  If  the  issues  are 
immaterial  or  trifling,  or  if  the  conduct  of  a  party  is  vexatious 
and  litigious,  or  if  he  raises  improper  points,  or  in  any  way 
creates  unnecessary  delay  or  expense,  the  court  will  not  only 
refuse  him  costs,  but  will  order  him  to  pay  costs.^  Although 
proper  relief  may  be  granted  upon  very  defective  pleadings, 
yet  the  court  will  consider  the  state  of  the  record  upon  the 
question  of  costs.^  Where  one  fund  is  apportioned  among  sev- 
eral charities,  and  a  suit  arises  in  relation  to  one  charity,  the 
costs,  as  a  general  rule,  will  come  out  of  the  fund  apportioned 
to  that  charity  ;  *  but  in  some  cases  they  may  come  out  of  the 
whole  fund.  The  courts  use  this  absolute  power  over  costs 
as  a  means  of  checking  improper  suits  or  defences.^ 

§  748.  The  distinctive  principles  of  equity,  which  courts  apply 
to  the  enforcement  and  regulation  of  trusts  for  charitable  uses, 

1  Currie  v.  Pye,  17  Ves.  462 ;  Bliss  w.  Araer.  Bible  Soc.  2  Allen,  334 ; 
Att'y-Gen.  v.  Moor's  Ex'rs,  4  C.  E  Green,  509,  where  it  is  said  that  it  is 
the  right  of  the  trustees  to  come  into  court  for  instructions  and  directions, 
and  that  it  is  the  practice  to  allow  the  costs  and  expenses  of  all  parties  as 
between  attorney  and  client.  3  Daniels,  Ch.  Prac.  1554.  But  no  such  rule 
prevails  in  New  York.  In  such  cases,  the  prevailing  party  will  be  allowed 
his  legal  costs,  but  no  allowance  out  of  the  estate  for  counsel  fees  will  be 
made  to  either  party.     Rose  v.  Rose,  28  N.  Y.  184. 

2  East  V.  Ryall,  2  P.  Wins.  284 ;  Att'y-Gen.  v.  Munro,  2  De  G.  &  Sra. 
122;  Att'y-Gen.  v.  Grocers'  Co.  1  Keen,  506;  Att'y-Gen.  v.  CuUum,  1 
Keen,  104 ;  Att'y-Gen.  v.  Mercers'  Co.  2  My.  &  K.  654 ;  Att'y-Gen.  -v. 
Vivian,  1  Russ.  226.  -•  Att'y-Gen.  v.  Hartley,  2  J.  &  W.  370. 

*  Att'y-Gen.  v.  Kerr,  4  Beav.  297. 

^  Att'y-Gen.  v.  Merchant  Tailors'  Co.  5  L.  J.  (x.  s.)  Ch.  62. 


§§  747,  748.]       THE   LAW   IN    THE    VARIOUS    STATES.  373 

are  confined  to  those  States  which  have  adopted  the  Statute, 
43  Eliz.  c.  4,  or  the  principles  of  the  common  law  in  regard  to 
trusts,  as  they  existed  [trior  to  the  statute.  In  some  States, 
the  statute  is  expressly  repealed  ;  and  such  repeal  has  been 
held  to  carry  with  it  all  the  distinctive  doctrines  of  public  char- 
ities, as  they  are  held  in  England.  In  other  States,  the  statute 
is  said  to  have  been  adopted,  or  to  be  in  force.  The  law  of 
other  States  is  founded  upon  what  is  supposed  to  have  been 
the  common  law,  or  the  ordinary  jurisdiction  and  practice  of 
the  Court  of  Chancery  prior  to  the  statute.  It  is  not  very 
material  whether  courts  of  equity,  in  the  several  States,  trace 
their  jurisdiction  to  the  statute  itself  as  in  force  in  their  State, 
or  whether  they  exercise  the  jurisdiction  as  original  and  in- 
herent in  courts  of  equity  by  common  law,  anterior  to  the 
statute.  Substantially  the  same  principles  are  applied,  and 
the  same  results  are  reached,  in  either  case.^ 

'  In  Alabama,  the  general  principles  of  the  statute  of  43  Eliz.  are  acted 
upon  by  courts  of  equity,  as  a  part  of  their  inherent  jurisdiction.  The  cases 
in  which  the  doctrines  are  discussed  are  Antones  v.  Eslava,  9  Porter,  527  ; 
Carter  v.  Balfour,  19  Ala.  814;  Williams  v.  Pearson,  38  Ala.  2')'J  ;  Johnson 
V.  Longmire,  39  Ala.  143.  From  the  principles  announced  by  the  court, 
there  is  no  reason  why  they  should  not  exercise  all  the  equity  powers  of  the 
English  Court  of  Chancery. 

In  Arkansas,  the  court  has  determined  that  public  charity  is  not  con- 
trolled by  the  rules  against  perpetuities.     (Irissom  v.  Hill,  17  Ark.  433. 

In  Connecticut,  the  statute  was  substantially  re-enacted  in  1702.  (ireene 
V.  Dennis,  G  Conn.  293 ;  Bull  v.  Bull,  8  Conn.  47  ;  Chatham  v.  Brainard, 
11  Conn.  60;  Amer.  Bible  Soc.  v.  Wetmore,  17  Conn.  188;  Hampden  v. 
Rice,  24  Conn.  350.  In  Fiske  v.  White,  22  Conn.  32,  the  court  declined 
to  establish  a  trust  in  which  the  trustees  were  to  expend  the  gift  in  educating 
young  men  studying  for  the  ministry  at  New  Haven,  on  account  of  the 
uncertainty  of  the  beneficiaries.  But  in  Treat's  App.  30  Conn.  113,  a  very 
indefmite  and  vague  trust  was  established.  The  later  case  will  be  more 
likely  to  be  followed  in  the  great  majority  of  States.  See  also  Brewster  ;;. 
McCall,  15  Conn.  274. 

In  Georgia,  the  courts  exercise  an  original  and  inherent  jurisdiction  over 
public  charities  upon  the  principles  of  the  statute,  and  apply  liberal  rules  of 
construction  to  carry  out  the  intention  of  the  donor.  Beal  v.  Fox,  4  Ga. 
404 ;  Walker  v.  Walker,  25  Ga.  420. 

In  Illinois,  the  statute  is  said  to  be  in  force,  and  courts  will  carry  out 


374  TRUSTS    FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

the  intention  of  the  donor  in  establisliing  a  charity.  They  disclaim  the 
power  to  change  the  objects,  cy  pi'es,  and  decide  that  a  charity  must  be 
accepted  as  given.  All  of  which  is  undoubted  law ;  but  from  the  principles 
of  interpretation  laid  down  there  is  no  reason  why  they  should  not  carry 
out  the  intention  of  the  donor  cy  pres,  if  there  fail  to  be  any  objects  of  his 
charity,  as  originally  given  and  administered.  And  this  doctrine  has  been 
applied  to  a  certain  extent.  Oilman  v.  Hamilton,  16  111.  225 ;  Heuser  v. 
Harris,  42  111.  425. 

In  Indiana,  courts  act  upon  the  statute,  and  enforce  general  and  indefi- 
nite charities,  according  to  the  intention  of  the  donors  and  upon  the  princi- 
ples of  courts  of  equity.  McCord  v.  Ochiltree,  8  Blackf.  15;  Sweeney  v. 
Sampson,  5  Ind.  465 ;  Indianapolis  v.  Grand  Master,  25  Ind.  518.  Ex 
parte  Lindley,  32  Ind.  367.  See  Richmond  v.  State,  5  Ind.  334.  In  Grimes 
V.  Harmon,  35  Ind.  198,  the  law  is  very  fully  discussed,  and  several  proposi- 
tions are  stated  as  the  law  of  Indiana.  The  case  of  White  v.  Fish,  and  a 
few  New  York  cases,  are  relied  upon. 

In  Iowa,  the  courts  act  on  an  original  and  inherent  jurisdiction  over 
charitable  bequests,  and  lay  down  the  rule  that  courts  are  acting  judicially 
as  long  as  they  effectuate  the  intention  of  a  donor.  Miller  v.  Chittenden, 
4  Iowa,  252.  They  also  hold  that  if  the  object  of  a  trust  is  certain,  but 
there  is  no  trustee,  the  court  will  appoint  one.  Johnson  v.  Mayne,  4  Iowa, 
180.  But  if  the  objects  are  uncertain,  and  no  trustee  is  appointed,  the 
trust  will  fail.     Le  Page  v.  Macnaniara,  6  Iowa,  146. 

In  Kentucky,  the  statute  of  Eliz.  is  in  full  force  by  adoption,  and  the 
courts  have  carried  their  equity  jurisdiction  to  the  extreme  verge  of  the  law 
in  establishing  charities.  Church  v.  Church,  18  B.  Mon.  635  ;  Hadden  v. 
Chorn,  8  B.  Mon.  78  ;  Gass  v.  Wilhite,  2  Dana,  170,  discuss  special  cases. 
In  Moore  v,  Moore,  4  Dana,  354,  a  charity  was  established  by  which  the 
judges  of  the  county  courts  were  to  select  the  objects.  In  Cronin  v.  Louis- 
ville, &c.  Soc.  3  Bush,  365,  a  bequest  to  a  corporation  already  holding  the 
amount  of  property  which  it  was  allowed  to  take,  was  held  to  lapse.  In 
Att'y-Gen.  v.  Wallace,  7  B.  Mon.  611,  a  general  gift  to  charitable  and 
religious  purposes,  without  trustees  and  without  any  machinery  pointed  out 
or  referred  to  by  which  trustees  were  to  be  appointed,  was  sustained.  This 
case  goes  further  than  any  other  case  observed  in  the  United  States.  Other 
cases  have  been  sustained  where  the  appointment  of  trustees  was  in  terms 
referred  to  the  court.  And  cases  have  been  sustained  where  trustees,  in- 
capable of  taking,  were  nominated  in  the  will,  whereby  it  appeared  that  the 
donor  intended  that  his  trustees  should  reduce  his  general  and  indefinite 
intent  to  a  practical  certainty.  Att^-Gen.  v.  Wallace  is  an  exception  to 
the  general  rule  that  courts  in  England  and  America  act  upon,  when  they 
do  not  profess  to  exercise  any  extraordinary  or  prerogative  powers. 

Louisiana  has  a  liberal  system  of  charitable  trusts  under  its  code,  which 
was  derived  from  the  civil  law.  The  statute  of  Eliz.  was  never  in  force  in 
the  State,  as  their  laws  were  derived  from  France  and  Spain.     See  Soc.  of 


§  748.]  THE   LAW   IN   THE   VARIOUS   STATES.  375 

Orphan  Boys  v.  New  Orleans,  &c.,  &c.,  12  La.  An.  62;  New  Orleans  v. 
McDonogli,  12  La.  An.  240;  Fink  v.  Fink,  12  La.  An.  201. 

In  INIaine,  the  statute  is  in  force,  or  rather  the  courts  act  upon  the  doc- 
trine tliat  the  equity  jurisdiction  of  ciiancery  over  charities  was  original  and 
inherent  in  courts  of  equity  before  the  statute.  Their  courts  carry  out  the 
intention  of  donors  by  establishing  charitable  gifts  made  to  voluntary  socie- 
ties for  indefinite  purposes.  Shapleigh  v.  Pilsbury,  1  Me.  271 ;  Tappan  v. 
Deblois,  45  Me.  222;  Preachers'  Aid  Soc.  v.  Rich,  45  Me.  55;  Howard  v. 
Amer.  Peace  Soc.  49  Me.  228 ;  Swazey  v.  Amer.  Bible  Soc.  57  Me.  526 ; 
Kimball  v.  Universalist  Soc.  in  Sweden,  34  Me.  434. 

In  Maryland,  neither  the  statute  nor  the  principles  of  the  statute  have 
ever  had  any  recognition  in  their  courts.  No  trust  for  charity  can  be  estab- 
lished, unless  the  beneficiaries  are  so  certain  that  they  can  maintain  an  action 
in  court  in  their  own  names  for  the  benefit  of  the  fund.  Of  course,  under 
such  a  rule,  no  trust  for  the  poor  of  a  city,  or  of  the  wards  of  a  city,  to  be 
relieved  according  to  the  discretion  of  the  trustees,  can  be  maintained  ;  and 
such  are  the  decisions.  Wilderman  v.  Baltimore,  8  Md.  550 ;  Methodist 
Church  V.  Warren,  28  Md.  338;  Dashiel  v.  Att'y-Gen.  5  Harr.  &  J.  392; 
6  Harr,  &  J.  1;  Murphy  v.  Dallam,  1  Bland,  529;  Beaty  v.  Kurtz,  2  Pet. 
566 ;  Needles  v.  Martin,  33  Md.  609. 

In  Massachusetts,  the  statute  is  in  full  force,  and  the  courts  have  estab- 
lished a  great  variety  of  charitable  bequests.  A  very  liberal  rule  of  inter- 
pretation has  been  adopted  to  ascertain  the  intention  of  donors,  and  such 
intention  has  been  carried  into  effect  as  near  as  may  be.  Bartlett  v.  King, 
12  Mass.  536;  Going  v.  Emery,  16  Pick.  107;  Sanderson  v.  White,  18 
Pick.  328 ;  Burbank  v.  Whitney,  24  Pick.  146  ;  Washburn  i'.  Sewell,  9  Met. 
280  ;  Bartlett  v.  Nye,  4  Met.  378  ;  Brown  v.  Kelsey,  2  Cush.  243  ;  Winslow 
V.  Cummings,  3  Cush.  358 ;  Tucker  v.  Seamen's  Aid  Soc.  7  Met.  188 ; 
Sohier  v.  St.  Peter's  Church,  12  Met.  250 ;  North  Adams  v.  Fitch,  8  Gray, 
241;  Wells  v.  Doane,  3  Gray,  201;  Easterbrooks  v.  Tillinghast,  15  Gray, 
17  ;  Nourse  v.  Merriam,  8  Cush.  11 ;  Earle  v.  Wood,  8  Cush.  445  ;  De.xter 
V.  Gardner,  7  Allen,  246 ;  Wells  v.  Heath,  10  Gray,  17 ;  Att'y-Gen.  v.  Old 
South  Soc.  13  Allen,  477  ;  Fairbanks  v.  Sampson,  99  Mass.  533 ;  Iladloy  v. 
Hopkins's  Acad.  14  Pick.  240 ;  Tainter  v.  Clark,  5  Allen,  66  ;  Att'y-Gen.  i;. 
Trinity  Church,  9  Allen,  422  ;  Baker  r.  Smith,  13  Met.  41  ;  Parker  v.  May, 
5  Cush.  336 ;  Bliss  v.  Amer.  Bible  Soc.  2  Allen,  334 ;  Drury  v.  Natick,  10 
Allen,  169;  Hosea  v.  Jacobs,  98  Mass.  65;  Barker  v.  Wood,  9  Mass.  419. 
In  Odell  V.  Odell,  10  Allen,  1,  it  was  determined  that  the  common-law  rule 
against  perpetuities  and  accumulations  did  not  apply  to  trusts  for  public 
charities.  In  Saltonstall  v.  Sanders,  11  Allen,  447,  it  was  determined  that 
the  word  "  benevolence  "  meant  "  cliaritable,"  and  in  Anier.  Acad.  v.  Har- 
vard College,  12  Gray,  582,  and  in  Jackson  v.  Phillips,  14  Allen,  540,  it 
was  determined  that  the  intention  of  the  donor,  to  be  ascertained  by  liberal 
rules  of  construction,  would  be  carried  into  effect,  cy  pres,  if  the  original 
objects  of  the  charity  failed.     In  Harvard  Coll.  v.  Soc.  Prom.  Theol.  Educ. 


376  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

3  Gray,  281,  it  was  determined  that  the  court  could  not  transfer  the  funds 
of  a  charity  from  one  board  to  another,  or  remove  trustees  for  the  mere  con- 
venience of  parties  ;  and  in  Att'y-Gen.  v.  Garrison,  101  Mass.  223,  it  -was 
determined  that  the  court  would  remove  a  trustee,  when  he  did  not  sympa- 
thize with  the  scheme  of  administering  the  charity,  as  settled  by  the  court 
upon  a  reference  to  a  master,  and  there  was  danger  that  he  would  not  carry 
out  the  scheme  with  proper  energy  and  efficiency.  It  will  be  seen  that  the 
court  has  dealt  with  a  great  variety  of  cases.  It  professes  to  adhere  to  the 
strict  chancery  jurisdiction  of  courts  of  equity,  without  invoking  any  of 
the  extraordinary  powers  of  the  chancellor  as  keeper  of  the  king's  con- 
science. Some  of  the  cases  that  enforce  gifts  in  trust  to  voluntary  and 
defunct  associations  reach  the  extreme  verge  of  the  law  ;  but  it  is  probable 
that  the  English  chancery  would  have  enforced  every  one  of  these  trusts 
without  calling  in  the  extraordinary  aid  of  prerogative  power.  It  is  proper 
to  say  that  unincorporated  religious  societies  are  clothed  with  veiy  consid- 
erable legal  power.     See  Gen.  Stat.  ch.  30,  §§  24,  25. 

In  Mississippi,  courts  exercise  the  inherent  jurisdiction  of  equity  over 
public  trusts  for  charity.  Wade  v.  Amer.  Colonization  Soc.  7  Sm.  &  M. 
663 ;  State  v.  Prewett,  20  Miss.  165. 

In  Missouri,  the  court  administers  trusts  for  public  charities  upon  the 
general  principles  of  the  statute,  and  with  a  liberal  interpretation  of  its 
powers.     Chambers  v.  St.  Louis,  29  Mo.  543. 

In  New  Hampshire,  the  courts  have  recognized  the  general  principles 
of  charitable  trusts ;  but  there  are  no  direct  decisions  indicating  how  far 
the  court  will  go  in  enforcing  trusts  for  vague  and  indefinite  purposes. 
Duke  V.  Fuller,  9  N.  H.  538;  Chapin  v.  School  Dist.  35  N.  H.  45-1;  Sec. 
Cong.  Soc.  V.  First  Cong.  Soc.  14  N.  H.  315 ;  Brown  v.  Concord,  33  N.  H. 
285 ;  Dublin  Case,  38  N.  H.  459 ;  New  Market  v.  Smart,  4  Amer.  Law 
Reg.  (N.  s.)  390. 

In  New  Jersey,  the  statute  was  never  in  force ;  but  the  Court  of  Chan- 
cery exercises  an  inherent  and  extensive  jurisdiction  over  charities,  on 
principles  acted  upon  in  England  and  many  of  the  States.  In  Morris 
V.  Thompson,  4  C.  E.  Green,  307,  an  interpretation  was  given  to  the  word 
"  benevolence,"  used  in  connection  with  the  words  "  religious  "  and  "  char- 
itable," following  the  cases  of  Ommanney  v.  Butcher,  and  Williams  v.  Ker- 
shaw, and  differing  from  the  case  of  Saltonstall  v.  Sanders,  in  Massachusetts. 
In  Att'y-Gen.  v.  Moore,  4  C.  E.  Green,  503,  the  court  speaks  of  the 
ordinary  powers  of  the  court,  which  are  exercised  in  the  ordinary  equity 
jurisdiction  in  chancery,  and  the  extraordinary  power  or  jurisdiction  which 
the  court  is  called  upon  to  exercise,  and  will  exercise  in  establishing  and 
regulating  public  charitable  trusts.  It  is  somewhat  difficult  to  understand 
what  is  meant  when  an  extraordinary  jJower  and  jurisdiction  is  referred  to, 
which  will  be  exercised  in  establishing  charitable  trusts  for  public  and  vague 
purposes.  If  these  words  mean,  that  any  prerogative  or  sovereign  function 
can  be  exercised  in  performing  judicial  duties,  it  is  certainly  a  mistake, 


§  748.]  THE   LAW   IN   THE   VARIOUS    STATES.  377 

unless  the  legislature  has  clothed  the  court  with  this  part  of  the  sovereign 
power  which  belongs  to  the  parens  palrice,  whether  king,  crown,  people,  or 
legislature.  If  it  is  simply  intended  that  an  ordinary  ecjuity  jurisdiction  will 
be  exercised  in  applying  rules  of  interpretation  and  of  law  adapted  to  the 
subject-matter,  —  that  is,  to  charitable  trusts  of  a  public  nature,  and  there- 
fore, of  necessity,  vague,  indefinite,  and  uncertain  at  times,  —  there  is  no 
occasion  to  find  fault;  for  it  is  a  mere  use  of  words  to  describe  the  rules 
that  will  be  applied.  If  it  is  meant,  that  the  rules  to  be  applied  to  the 
judicial  construction  and  administration  of  public  charitable  trusts  are  difl'er- 
ent  from  the  rules  applied  to  private  trusts  for  individuals,  and  are  in  that 
sense  extraordinary,  there  is  no  objection  to  the  language.  But  if  it  is 
meant  that  any  function,  not  strictly  judicial  within  the  ordinary  and  inher- 
ent jurisdiction  of  courts  of  equity  over  charities,  can  be  exercised,  the 
power  is  misapprehended.  It  must  be  a  fundamental  rule  in  America,  that 
no  public  trust  for  charity  can  be  established,  unless  the  judges  can  estab- 
lish it  by  strictly  judicial  determinations.  If  the  gift  is  too  imperfect  or  too 
indefinite  to  be  established  by  the  courts  acting  judicially,  the  legislature 
alone  can  establish  it  by  special  act,  or  the  legislature  may  clothe  the  courts 
with  such  powers  as  it  sees  fit  to  confer. 

In  New  York,  many  of  the  earlier  cases  decided  that  the  courts  had  full 
jurisdiction  over  charitable  bequests,  to  enforce  them  according  to  judicial 
rules.  In  one  case,  it  was  held  that  the  jurisdiction  of  the  chancellor  was 
as  extensive  as  the  commission  under  the  privy  seal  in  England.  Wright  v. 
Trustees  of  Meth.  Epis.  Church,  1  Hoff.  Ch.  202.  This  was  carrying  their 
power  too  far,  and  it  was  denied  in  Ayers  v.  Trustees  of  Meth.  Epis.  Church,* 
3  Sandf.  S.  C.  o.'A.  In  King  t'.  WoodhuU,  3  Edw.  Ch.  79,  the  common 
English  judicial  principles  were  applied  ;  and  cases  have  been  sustained 
where  gilts  were  made  to  unincorporated  societies  for  charitable  purposes. 
Shotwell  V.  ]\lott,  2  Sandf.  Ch.  46 ;  Potter  v.  Chapin,  6  Paige,  639  ;  Banks 
V.  Phelan,  i  Barb.  80;  Coggeshall  v.  Pelton,  7  John.  Ch.  292;  Newcomb  v. 
St.  Peter's  Church,  2  Sandf.  636;  2  Kent,  286;  4  Kent,  508;  People  v. 
Steele,  2  Barb.  397;  Miller  v.  Gable,  2  Denio,  492;  Kniskern  v.  Lutheran 
Churches,  I  Sandf.  Ch.  439.  Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  112, 
in  the  Supreme  Court  of  the  United  States,  decided,  upon  the  law,  as  it 
was  understood  to  exist  in  New  York,  that  a  devise  to  the  chancellor, 
mayor,  and  recorder  of  New  York,  and  several  other  persons  by  their 
official  description  for  the  time  being,  and  their  successors  in  office,  adding, 
"if  this  cannot  be  done  without  an  act  of  incorporation  they  should  apply 
for  one,"  was  a  good  devise  for  a  charitable  use.  Williams  v.  Williams,  4 
Seld.  o2o,  })roceeded  upon  a  very  moderate  and  cautious  rule,  but  there  was 
very  considerable  dissent.  Trustees  of  Theo.  Sem.  v.  Kellogg,  16  N.  Y".  83, 
was  decided  the  same  way.  But  the  later  cases  have  decided  that  no  char- 
itable trust  can  be  established  in  that  State,  where  the  trustee  named  cannot 
take  the  legal  title  to  all  intents  and  purposes.  There  is  a  statute  in  New 
Y'ork  forbidding  a  corporation  to  take  lands  for  any  purpose  not  germane 


378  TRUSTS   FOR   CHARITABLE   USES.  [CHAP.  XXIII. 

to  the  purposes  for  which  it  was  incorporated.  So  if  a  gift  is  made  to  a 
corporation  for  a  charitable  purpose  other  than  that  for  which  the  corpora- 
tion exists,  the  gift  fails,  for  the  reason  that  the  court  will  appoint  no  other 
trustee.  McCarter  v.  Orphan  Asylum  Soc.  9  Cow.  437;  Robertson  ». 
Bullions,  9  Barb.  64 ;  11  N.  Y.  243.  So  if  a  bequest  is  made  to  a  voluntary- 
association  in  trust  for  a  charity,  the  gift  fails  because  the  voluntary  associa- 
tion is  not  capable  of  taking  the  property.  Owens  v.  Mission  Soc.  14  N.  Y. 
380;  White  v.  Howard,  52  Barb.  294;  Harris  v.  Amer.  Bib.  Soc.  2  N.  Y. 
Dec.  316.  The  reasoning  is,  that  the  jurisdiction  of  the  court  attaches  only 
where  there  is  a  trust,  and  there  is  a  trust  only  where  there  is  a  trustee 
capable  of  taking.  The  general  rule  in  private  trusts  is,  that  where  a  clear 
trust  is  created,  but  the  trustee  is  not  named,  the  court  will  not  allow  the 
clear  intention  to  create  a  trust  to  fail  for  want  of  a  trustee.  And  so  it 
would  appear  that  the  clear  intention  of  the  testator  that  trustees  should 
carry  out  liis  purpose  might  be  carried  into  effect  by  the  courts.  A  bequest 
to  such  five  persons  as  the  judges  of  the  Supreme  Court  of  Vermont  should 
appoint  to  establish  a  school,  was  held  void.  Bascomb  v.  Albertson,  34 
N.  Y.  584.  In  this  case,  the  ground  is  taken  that  the  statute  of  Elizabeth 
was  repealed  by  the  New  York  statute  of  1788 ;  and  that  if  the  jui-isdiction 
over  charities  existed  before  the  statute  of  Elizabeth,  still  in  1788  it  was 
universally  supposed  that  the  jurisdiction  in  England  depended  upon  the 
statute  ;  therefore,  when  the  assembly  repealed  the  statute  in  1788,  it  must 
have  intended  to  repeal  the  whole  system  of  charitable  uses ;  that  since  that 
time  a  new  system,  peculiar  to  the  institutions  of  the  State,  has  grown  up, 
^nd  the  courts  of  New  York  will  not  now  enforce  charitable  trusts,  not  in 
harmony  with  the  New  York  system,  unless  they  are  as  definite  as  private 
trusts.  Although  trustees  are  certain  and  capable  of  taking  the  legal  estate, 
the  trust  cannot  be  established,  if  there  is  any  uncertainty  in  respect  to  the 
beneficiaries  or  any  discretion  in  the  trustees;  thus  where  a  fund  was  given 
to  executors  to  be  applied  by  them,  according  to  their  judgment,  in  found- 
ing a  college  in  Liberia,  it  was  held  that  the  gift  was  void  for  uncertainty  in 
the  application  of  it.  Phelps  v.  Phelps,  28  Barb.  121 ;  Beekman  v.  People, 
27  Barb.  260;  Beekman  v.  Bonsor,  28  N.  Y.  290;  Owens  v.  Mission  Soc. 
14  N.  Y.  380 ;  Y'ates  v.  Yates,  9  Barb.  324 ;  King  v.  Bundle,  15  Barb. 
139  ;  Wilson  v.  Lynt,  16  How.  (N.  Y.)  Prac.  R.  348;  30  Barb.  124;  Dodge 
V.  Pond,  23  N.  Y.  69 ;  Goddard  v.  Pomeroy,  36  Barb.  546 ;  Levy  v.  Levy, 
33  N.  Y.  97;  Sherwood  v.  Amer.  Bible  Soc.  1  Keyes,  566.  It  is  further 
considered  by  the  court  that  the  Revised  Statutes  abolish  all  express  trusts 
except  for  the  purposes  specially  named,  which  are  four  in  number,  and  are 
active  trusts  in  the  interests  of  private  individuals  for  temporary  purposes, 
and  do  not  include  permanent  trusts  for  charitable  uses,  or  for  the  benefit  of 
classes  of  persons,  or  for  corporations.  Holmes  v.  Mead,  52  N.  Y.  339; 
Burrill  v.  Boardman,  43  N.  Y.  263;  Adams  v.  Perry,  43  N.  Y.  487;  Cham- 
berlain I'.  Chamberlain,  43  N.  Y.  424;  Leonard  v.  Bell,  1  N.  Y.  Sup.  Ct. 
608 ;  Donaldson  v.  American  Tract  Soc.  1  N.  Y.  Sup.  Ct.  Add.  15  ;  Leferve 


§  748,]  THE   LAW   IN   THE   VARIOUS   STATES.  379 

V.  Leferve,  2  N.  Y.  Sup.  Ct.  330.  It  is  now  conceded  tliat  the  law  of 
charitable  uses  was  not  founded  upon  the  statute  of  Elizabeth;  and  neither 
the  courts  nor  the  bar  of  New  York  understood,  for  more  than  half  a 
century,  that  the  statute  of  1788  repealed  the  statute  of  Elizabeth.  And  it 
might  well  have  been  assumed  after  such  a  length  of  time,  that  the  repeal 
did  not  extend  further  than  the  statute  of  1788  itself  went,  and  that  if  the 
statute  of  1788  repealed  the  statute  of  Elizabeth,  the  system  which  was 
independent  of  it  still  remained.  It  would  not  be  becoming  to  criticise  the 
jurisprudence  of  a  great  State  upon  so  important  a  subject ;  but  the  question 
arises  in  every  mind  conversant  with  this  branch  of  the  law,  whether  the 
new  system,  that  has  taken  the  place  of  the  old,  is  more  certain  in  its  appli- 
cation and  more  satisfactory,  and  better  adapted  to  the  wants  of  a  great  and 
growing  people.  Does  the  new  system  carry  out  the  intention  of  charitable 
donors  with  more  efficiency  than  did  the  old  and  tried  system,  which  had 
grown  up  with  time,  and  had  been  modified  by  the  wisdom  of  so  many 
judges,  and  still  satisfies  the  wants  of  so  many  States  ?  Another  observation 
may  be  made.  The  cases,  thus  far  decided,  evince  great  learning,  research, 
and  ability ;  but  there  seems  to  be  a  want  of  confidence  in  the  stability  of 
the  system,  and  a  want  of  agreement  among  both  the  lawyers  and  the 
judges:  so  that  the  whole  matter  is  yet  in  a  transition  state.  If  certainty 
is  an  element  of  safety  and  security  in  the  law,  the  attempt  to  substitute 
one  system  for  another  has  as  yet  only  reached  the  point  of  rendering  both 
systems  uncertain.  Consistory  v.  Brandon,  52  Barb.  228 ;  Chamberlain  v. 
Chamberlain,  43  N.  Y.  424. 

In  North  Carolina,  the  statute  was  declared  to  be  in  force  in  its  general 
principles,  and  courts  applied  very  liberal  rules  in  dealing  with  this  kind  of 
trusts.  Griffin  v.  Graham,  1  Hawks,  96 ;  State  v.  McGowen,  2  Ired.  Eq. 
9;  State?;.  Gerard,  2  Ired.  Eq.  210.  But,  since  those  cases,  the  courts 
have  declined  to  apply  the  rules  applicable  to  public  trusts,  and  have  con- 
fined themselves  to  the  rules  applicable  to  trusts  for  private  individuals. 
Wilson  V.  McAuley,  1  Dev.  Eq.  276 ;  Trustees  v.  Chambers,  3  Jones,  Eq. 
253;  Holland  v.  Peck,  2  Ired.  Eq.  255;  Haywood  v.  Craven,  2  Car.  L.  R. 
557 ;  White  v.  Att'y-Gen.  4  Ired.  Eq.  19.  Perhaps  some  of  these  trusts 
were  too  uncertain  to  be  established  by  the  most  liberal  judicial  rules,  and 
certainly  it  would  be  hard  to  convict  a  trustee  of  breach  of  trust  in  applying 
a  fund  for  the  good  of  "  poor  saints."  There  might  be  so  great  a  difficulty  in 
determining  who  were  "  saints"  and  "  poor,"  and  what  should  be  done  for 
them,  in  other  States  as  well  as  North  Carolina,  that  the  trust  might  well 
fail,  although  there  was  a  trustee  to  exercise  his  discretion  in  selecting  them. 
Bridges  v.  Pleasants,  4  Ired.  Eq.  26  ;  White  v.  University,  4  Ired.  Eq.  19. 
See  Miller  v.  Atkinson,  6o  N.  C.  5o7. 

In  Ohio,  the  statute  is  in  full  force,  and  the  general  rules  of  equity  ajipli- 
cable  to  public  trusts  are  applied  by  the  courts.  Perin  v.  Carey,  24  How. 
465;  IluUman  v.  Honcomp,  5  Ohio  St.  237;  Zanesville  Canal  v.  Zanesville, 
2  Ohio,  483;   M'Intire's   School  v.  Zanesville,  9  Ohio,  203;  Amer.  Bible 


380  TRUSTS   FOR   CHARITABLE   USES.         [CHAP.  XXIII. 

Soc.  V.  Marshall,  15  Oliio  St.  537 ;  Urmey's  Ex'rs  v.  Wooden,  1  Oliio  St. 
160. 

In  Pennsylvania,  the  statute  is  not  directly  in  force,  and  the  courts  are 
not  confined  to  the  statute  for  an  enumeration  of  charitable  uses ;  but  in 
other  respects  the  principles  of  the  statute  are  a  part  of  the  common  law  of 
the  State.  In  1855,  an  act  was  passed  declaring  that  when  gifts  are  made 
to  religious,  charitable,  educational,  literary,  or  scientific  purposes,  in  no 
event  whatever  shall  they  revert  to  the  heir,  but  the  courts  are  to  apply 
them  to  the  purposes  for  which  they  were  intended.  Previous  to  this  statute, 
the  courts  had  applied  most  liberal  judicial  rules  to  the  establishment  and 
regulation  of  public  charities.  Whitman  v.  Lex,  17  S.  &  R.  88;  Wright 
V.  Linn,  9  Barr,  435;  Soohan  v.  Philadelphia,  33  Penn.  St.  'J;  Price  v. 
Maxwell,  28  Penn.  St.  23  ;  Pickering  v.  Shotwell,  10  Barr,  23  ;  Grifliths 
V.  Cope,  17  Penn.  St.  96 ;  Girard  v.  Philadelphia,  7  "Wall.  1 ;  McLain 
V.  School  Directors,  51  Penn.  St.  196  ;  Evangelical  Asso.  App.  35  Penn. 
St.  316;  Mission.  Soc.  App.  30  Penn.  St.  425;  Cresson's  App.  30  Penn. 
St,  437  ;  Meth.  Church  v.  Remmington,  1  Watts,  218  ;  Gregg  v.  Irish,  9  S. 
&  R.  211;  Browers  v.  Fromm,  Add.  365;  McGirr  v.  Aaron,  1  Penn.  49: 
Martini;.  McCord,  5  AVatts,  494;  Barr  w.  Weld,  24  Penn.  St.  84;  Brender 
V.  German  Ref.  Cong.  33  Penn.  St.  418;  Philadelphia  v.  Wills,  3  Rawle, 
170;  Casseirs  App.  3  Watts,  440;  Morrison  v.  Beirer,  2  W.  &  S.  81 ; 
Zimmerman  v.  Anders,  6  W.  &  S.  218;  Magill  v.  Brown,  Brightly,  347; 
Blenon's  Estate,  Brightly,  345  ;  Vidal  v.  Girard's  Ex'rs,  2  How.  128.  In 
Hillyard  v.  Miller,  10  Penn.  St.  326,  it  was  determined  that  accumulations 
for  charity  could  not  be  allowed  beyond  the  legal  period  ;  but  in  Philadelphia 
V.  Girard,  45  Penn.  St.  9,  this  point  was  substantially  overruled.  McLean  v. 
Wade,  41  Penn.  St.  266;  Miller  v.  Porter,  53  Penn.  St.  292;  Henderson 
V.  Hunter,  59  Penn.  St.  336;  Philadelphia  v.  Fox,  6  Penn.  St.  170.  In 
Zeisweiss  v.  James,  63  Penn.  St.  465,  it  was  determined  that  uncertainty  in 
the  objects  of  a  trust  is  no  objection,  if  there  are  trustees  who  can  select  the 
objects  and  render  them  certain  ;  but  if  there  are  no  trustees  to  select  the 
objects,  the  court  cannot  appoint  trustees  and  clothe  them  with  the  power 
of  selection.  It  was  further  determined,  that  an  unincorporated  society  may 
take  under  a  charitable  devise ;  but  that  a  gift  to  a  corporation  to  be 
incorporated,  but  which  might  not  be  incorporated  within  the  time  for  limit- 
ing estates,  is  void.  And  so  if  the  gift  is  to  a  corporation  to  be  created, 
but  which  cannot  exist  according  to  the  laws  of  the  State,  it  must  fail.  It 
was  further  determined,  that  the  laws  and  institutions  of  Pennsylvania  are 
built  on  the  foundation  of  reverence  for  Christianity,  and  that  the  religion 
revealed  in  the  Bible  is  not  to  be  openly  reviled,  ridiculed,  or  blasphemed 
to  the  annoyance  of  sincere  believers ;  and  that  trusts  attempted  to  be 
created,  tending  to  that  end,  are  illegal  and  void. 

In  Rhode  Island,  the  jurisdiction  of  the  courts  is  founded  upon  an  old 
statute  very  similar  to  the  statute  of  Eliz.,  and  rules,  appropriate  to  char- 
itable trusts  where  the  statute  is  in  force,  are  applied  by  the  court  to  such 


§  748.]  THE    LAW    IN    THE    VARIOUS    STATES.  381 

cases.     Derby  v.  Derby,  4  R.  I.   414;  Potter  v.  Thornton,  7  R.  I.   252; 
Meeting  Street  Bap.  Soc.  v.  Hail,  8  R.  I.  240. 

In  South  Carolina,  the  courts  exercise  an  original  jurisdiction  over  char- 
itable trusts,  whether  the  statute  is  in  force  in  the  State  or  not,  and  rules 
proper  for  such  trusts  are  applied  as  in  other  States.  Att'y-Gen.  v.  Jolly, 
1  Rich.  Eq.  99 ;  2  Strob.  379 ;  Combe  v.  Brazier,  2  Des.  431 ;  AttV-Gen. 
V.  Clergy  Soc.  8  Rich.  Eq.  190;  Gibson  v.  IMcCall,  1  Rich.  L.  174. 

In  Tennessee,  the  court  exercises  an  original  jurisdiction  over  charitable 
trusts,  and  the  common  rules  applicable  to  public  charities  are  approved; 
but  there  is  a  slight  uncertainty  in  their  application.  Green  v.  Allen,  5 
Humph.  170.  The  later  cases,  Franklin  v.  Armdeld,  2  Sneed,  305,  and 
Dickson  v.  Montgomery,  1  Swan,  348,  proceed  with  more  confidence  and 
firmness.  The  court  refers  to  an  extraordinary  jurisdiction  and  power 
which  it  may  exercise  in  charity  cases.  See  remai-ks  upon  this  matter 
under  New  Jersey  in  this  note.  See  also  White  v.  Hale,  2  Cold.  77  ; 
Gass  V.  Ross,  3  Sneed,  211. 

In  Texas,  the  court  exercises  an  original  and  inherent  jurisdiction  over 
charities  upon  the  principles  of  the  statute.  Hopkins  v.  Upshur,  20  Tex. 
89;  Ball  v.  Alexander,  22  Tex.  355;  Paschal  v.  Acklin,  27  Tex.  173. 

In  Vermont,  the  statute  is  substantially  the  law  of  the  State  in  relation 
to  charitable  trusts.  Stone  v.  Griffin,  3  Vt.  400;  Burr  v.  Smith,  7  Vt. 
241  ;  Penfield  v.  Skinner,   11  Vt.  296. 

In  Virginia,  the  statute  was  repealed ;  and  tlie  courts  will  establish  no 
public  trust  for  a  charitable  use  e.xcept  it  comes  within  the  strict  rules  of 
private  trusts.  This,  of  course,  destroys  all  trusts  in  which  a  trustee  has 
any  discretion  in  selecting  the  objects  of  the  charity.  Gallego  v.  Att'y- 
Gen.  3  Leigh,  451  ;  Seaburn  v.  Seaburn,  15  Grat.  243;  Baptist  Associa- 
tion V.  Hart,  4  Wheat.  1  ;  Wheeler  v.  Smith,  9  How.  55 ;  Carter  v.  Wolf, 
13  Grat.  301 ;  Richmond  v.  Tayloe,  Gil.  33G.  And  see  Venable  v.  Coff- 
man,  2  West  Va.  310;  Janey  v.  Latane,  4  Leigh,  327  ;  Carpenter  v.  Miller, 
3  W.  Va.  174.     See  also  Levy  v.  Commonwealth,  23  Grat.  21. 

In  the  other  States,  no  cases  have  been  observed. 


382  TRUSTEES    FOR   BONDHOLDERS.  [CHAP.  XXIV. 


CHAPTER   XXIY. 

TRUSTEES    FOR    BONDHOLDERS    OF   RAILWAYS    AND     OTHER    CORPO- 
RATIONS. 

§  749.  Nature  of  such  trusts. 

§  750.  Character  of  such  trusts  in  England. 

§  751.  Character  of  the  mortgages  at  common  law. 

§  752.  Where  an  act  of  parliament  confers  the  onlj'  power  of  borrowing. 

§  753.  Where  a  person  to  whom  a  mortgage  is  made  assigns  a  part  of  the  mortgage 
debt. 
§§  754,  755.  Power  of  corporations  to  mortgage  their  general  property. 

§  766.  The  franchise  of  being  a  corpoi'ation  cannot  be  aliened  or  mortgaged. 

§  757.  Whether  the  franchise  of  doing  the  business  of  the  corporation  can  be  mort- 
gaged. 

§  758.  The  power  to  mortgage  need  not  be  given  in  express  words. 

§  759.  Whether  the  mortgage  embraces  property  subsequentlj'  acquired. 

§  760.  General  duties  of  trustees  for  bondholders. 

§  761.  How  they  maj'  foreclose  the  mortgage. 
§§  762, 763.  Duties  and  responsibilities  when   possession  is  taken   of   the  mortgaged 
property. 

§  749.  Within  the  last  few  years  it  has  become  common  in 
this  country  to  create  trusts  for  bondholders.  The  develop- 
ment of  railways  has  been  rapid,  and  to  operate  and  extend 
them  often  requires  large  sums  of  money  in  excess  of  their 
capital  stock,  or  their  ordinary  floating  debt.  As  it  is  impos- 
sible to  obtain  these  large  sums  in  the  ordinary  course  of 
business  from  one  source  and  without  security,  the  bonds  of 
the  corporation  are  issued,  under  authority  of  the  legislature, 
and  sold  in  the  market,  and  the  franchise  and  property  of 
the  corporation  conveyed  in  mortgage  to  one  or  more  persons 
in  trust  to  secure  the  purchasers  and  holders  of  the  bonds. 
The  bonds  may  amount  to  millions  of  dollars,  and  be  scattered 
through  the  country,  and  even  in  foreign  lands  ;  but  the  trus- 
tees hold  the  conveyance  of  the  property  in  trust  for  all  who 
have  the   bonds   described   or  referred  to  in  the   mortgage. 


§§  749,  750.]  PRACTICE    IN    ENGLAND.  383 

The  corporation  itself  issues  the  bonds,  and  promises  to  pay 
the  principal  and  interest  at  a  time  named.  So  long  as  the 
corporation  pays  the  interest  or  the  principal  of  the  bonds,  as 
agreed,  the  trustees  have  little  or  nothing  to  do.  The  general 
principles  of  the  law  of  trusts  apply  to  them.^  They  hold 
the  security  in  trust  for  the  bondholders,  as  cestuis  que  trust; 
and  they  must  act  in  good  faith,  and  for  the  best  interests  of 
all.  They  must  take  care  that  the  property  is  not  wasted,  or 
depreciated,  or  rendered  worthless  as  security.  They  should 
not  acquire  interests,  or  put  themselves  in  positions  or  rela- 
tions, which  are  antagonistic  or  hostile  to  the  interests  of  the 
bondholders.  Doubtless  they  can  purchase  the  bonds  for 
which  the  mortgage  stands  as  security  in  the  open  market  : 
but  they  could  not  go  among  the  bondholders  and  solicit  the 
purchase  of  the  bonds  ;  for,  holding  the  security  for  the  bonds 
in  their  own  hands,  their  position  and  influence  would  be  such, 
and  the  danger  of  fraud  so  great,  that  a  court  of  equity  would 
not  allow  the  bargain  to  stand.  Their  duty  in  all  such  respects 
would  be  governed  by  the  general  rules  that  affect  all  trustees, 
modified  to  meet  the  exigencies  of  the  case.  It  is  only  where 
there  is  a  default  made  by  the  corporations  in  the  payment 
of  the  bonds  or  the  interest,  and  it  is  necessary  for  the  bond- 
holders to  have  recourse  to  the  mortgage  security,  that  their 
peculiar  duties  begin. ^ 

§  750.  The  usual  practice  in  England  is  to  mortgage  only 
the  tolls,  accruing  profits,  or  future  calls  of  the  corporation.^ 
If  the  act  of  parliament  only  authorizes  such  a  mortgage,  or 
if  the  deed  itself  extends  only  to  the  tolls,  profits,  and  future 
calls,  receivers  may  be  api)ointed  to  receive  tlie  tolls,  profits, 
or  other  income  of  the  corporation  ;  I)ut  an  action  of  eject- 
ment cannot   be   maintained   for  the  possession   against   the 

'  Sturges  V.  Knapp,  31  Vt.  1. 

2  Ibid. 

'  8  «fc  9  Vict.  c.  16. 


384  TRUSTEES    FOR   BONDHOLDERS.  [CHAP.  XXIV. 

corporation.^  But,  of  course,  there  may  be  a  mortgage 
authorized  and  made,  whicli  will  give  the  mortgagee  a  right 
to  the  possession  of  the  property  :  in  such  case  the  mortgagee 
entitled  to  the  possession  may  maintain  an  action  against  the 
mortgagor,  or  subsequent  mortgagees.^ 

§  751.  If  a  mortgagee  of  the  tolls  and  income  is  in  posses- 
sion of  the  property  of  the  corporation,  receiving  the  tolls 
and  income,  he  will  hold  the  receipts  in  trust  for  the  holders 
of  the  bonds,  claims,  or  debts  for  which  the  mortgage  was 
made  as  security ;  and  upon  payment  of  all  such  claims  or 
debts  he  will  hold  the  income  in  trust  for  subsequent  incum- 
brancers.^ So  where  the  mortgage  is  of  an  aliquot  part  of 
the  income,  the  trustees  will  receive  the  toll  or  income  for 
those  entitled ;  but  no  action  at  law  can  be  maintained  against 
them  for  such  moneys.  They  can  be  called  to  an  account 
only  in  equity.^  It  sometimes  happens  that  a  mortgage  of  the 
tolls  and  income  contains  a  power  of  sale  of  the  whole  under- 
taking. If  a  sale  is  made  under  such  power  in  a  first  mort- 
gage, it  is  a  bar  to  all  subsequent  mortgages  ;  and  subsequent 
mortgagees  can  only  claim  the  surplus  in  the  hands  of  the 
first  mortgagee  after  paying  off  all  the  claims  for  which  the 
first  mortgage  stands  as  security.^ 

§  752.  Where  the  act  of  parliament  confers  upon  corpora- 
tions their  only  power  of  borrowing,  they  can  borrow  in  no 

1  Falrtitle  v.  Gilbert,  2  T.  R.  169;  Banks  v.  Booth,  2  B.  &  P.  219  ; 
Myatt  V.  St.  Helen's  and  Runcorn  Gap  Railw.  2  Q.  B.  364  ;  2  Raihv.  C. 
756.  See  comments  of  Lord  Chelmsford,  in  Wickham  v.  New  B.  &  Canada 
Railw.  12  Jur.  (n.  s.)  34. 

^  Thompson  v.  Lediard,  4  B.  &  Ad.  137;  Watton  v.  Penfold,  3  Q.  B. 
757 ;  Levy  v.  Home,  3  Q.  B.  757. 

8  Ibid. 

*  Pardoe  v.  Price,  11  M.  &  W.  427;  13  M.  &  W.  267;  16  M.  &  W. 
451. 

*  South-Eastern  Railway  Co.  v.  Jortin,  31  Law  Times,  44. 


§§  750,  753.]       PRACTICE    IN    THE    UNITED    STATES.  385 

other  manner  ;  ^  and  if  the  act  of  parliament  authorizes  a  mort- 
gage of  the  tolls  or  income,  or  of  the  corporate  property,  and 
a  mortgage  is  executed  in  conformity  with  the  act,  no  power 
is  given  to  enter  into  personal  covenants  ;  therefore  no  action 
lies  against  the  company  upon  the  deed  to  recover  the  money 
loaned,  but  proceedings  are  confined  to  remedies  against  the 
property  or  tolls  mortgaged.^  But  if  there  is  no  restriction  in 
the  act  of  parliament  upon  the  power  of  borrowing,  and  the 
company  has  the  usual  power  of  borrowing  money,  and  of 
securing  payment  by  personal  covenants,  actions  will  lie  against 
the  corporation  to  recover  the  money ,^  and  bondholders  may 
maintain  actions  upon  the  covenants  in  the  bonds.^ 

§  753.  If  a  mortgage  is  made  to  one  person  to  secure  several 
notes  or  bonds  made  to  him,  and  tlie  mortgagee  assigns  the 
notes  or  bonds  to  different  persons,  but  continues  to  hold  the 
mortgage  security  in  his  own  name,  he  will  hold  it  in  trust  for 
the  several  persons  to  whom  he  has  assigned  the  mortgage 
notes,  bonds,  or  other  evidences  of  the  debt  due  to  him.  So 
if  a  mortgage  of  a  railway  is  made  to  a  person  to  secure  a 
large  number  of  bonds  given  to  him,  and  he  assigns  or  sells 
tlie  bonds  to  various  persons,  he  becomes  a  trustee,  by  equitable 
construction,  of  the  mortgage  security  for  the  several  holders 
of  the  bonds,  and  such  constructive  trust  is  governed  by  the 
common  rules  that  apply  to  such  transactions.  But  such  mort- 
gages are  not  within  the  statutes  in  force  in  many  States  in 

1  Chambers  v.  Manchester  &  Mllford  Raihv.  10  Jur.  (x.  s.)  700 ;  Lowndes 
V.  Garnett  &  Mosely  Co.  33  L.  J.  Cli.  418. 

^  Furness  v.  Caterham  Iliiihv.  2."^  Boav.  614  ;  27  Beav.  358;  Pontet  v. 
Basingstoke  Canal  Co.  3  Bing.  N.  C.  433;  Long  v.  Mathieson,  2  Gif.  71. 

^  Hill  V.  Manchester  Water  Works,  2  B.  &  Ad.  544 ;  Balckow  v.  Heme 
Bay  Pier  Co.  16  P:ng.  L.  &  Eq..  159 ;  1  El.  &  Bl.  74;  Hart  v.  Eastern 
Union  Railw.  8  Eng.  L.  &  Eq.  544;  14  Eng.  L.  &  Ec}.  535;  7  Exch.  246; 
Perkins  v.  Pritchard,  3  Railw.  C.  95 ;  Bryon  v.  Metropolitan  Saloon  Oiinii- 
bus  Co.  3  De  G.  &  Jones,  123. 

"  Price  V.  Great  Western  Railw.  16  M.  &  W.  244;  White  v.  Carmar- 
then, &c.  Railw.  1  H.  «fe  M.  786. 

VOL.  II.  25 


386  TRUSTEES   FOR   BONDHOLDERS.  [CHAP.  XXIV. 

relation  to  mortgages  of  railways  in  trust,  as  security  for  bonds 
to  be  issued  by  the  corporation.  In  the  case  first  stated,  the 
bondholders  cannot  appoint  a  new  trustee,  nor  have  they  any 
statute  powers  over  such  trust ;  but  they  must  apply  to  the 
courts,  and  take  such  action,  for  the  enforcement  of  it,  as  is 
necessary  in  the  ordinary  case  of  a  private  trust. ^ 

§  754.  In  the  United  States,  the  power  of  corporations  to 
mortgage  their  property  has  been  much  considered.  The  dis- 
cussions in  courts  have  been  prolonged  upon  the  question, 
What  can  trustees  take  under  a  mortgage  by  a  corporation  ? 
It  seems  to  be  well  established,  that  corporations  have  a  general 
right  and  power  to  mortgage  their  real  and  personal  property 
to  secure  the  payment  of  the  purchase-money  of  such  property ,2 
or  to  secure  their  general  debts.^  And  even  if  the  charter  of  a 
railway  or  other  corporation  provides  that  the  money  to  con- 
struct the  road  or  other  works  of  the  corporation  shall  be  raised 
by  subscription  or  by  the  sale  of  a  determined  number  of  shares, 
or  that  new  shares  may  be  issued  for  additional  funds,  or  that 
the  shares  shall  not  be  assessed  beyond  one  hundred  dollars 
per  share,  the  power  of  mortgaging  is  not  excluded,  but  the 
corporations  may  raise  money  by  a  mortgage  to  trustees  or 
otherwise.'*     The  mortgage  in  such  cases  must  be  executed 

'  In  re  Bondholders  of  the  York  and  Cumberland  R.R.  Co.  50  Me.  565. 

*  Susquehanna  Bridge  Co.  v.  General  Ins.  Co.  3  Md.  30;  Lucas  v.  Pit- 
ney, 3  Dutch.  221;  White  v.  Carmarthen  and  Cardigan  Railw.  33  L.  J.  Ch. 
93  ;  Mobile  &  Cedar  Point  Railw,  v.  Tolman,  15  Ala.  472  ;  Joy  v.  J.  &  M. 
Plank  R.  Co.  11  Mich.  155;  Australian  Auxil.  S.  Clipper  Co.  v.  Mounsay, 
4  K.  &  J.  733  ;  Scott  v.  Colburn,  26  Beav.  276. 

^  Gordon  v.  Preston,  1  Watts,  385 ;  In  re  Magdalena  Steam  Nav.  Co. 
1  John.  (Eng.)  690;  Coe  v.  Columbus,  &c.  Railw.  10  Ohio  St.  372,  412; 
Coe  V.  Peacock,  14  Ohio  St.  187;  23  How.  117;  Bardstown  &  Louisville 
Railw.  V.  Metcalfe,  4  Met.  (Ky.)  199 ;  Jackson  v.  Brown,  5  Wend.  590 ; 
De  Ruyter  v.  St.  Peter's  Church,  2  Comst.  238 ;  Central  Bridge  v.  Baily, 
8  Cush.  319 ;  Jowitt  v.  Lewis,  4  Lit.  160 ;  Enders  v.  Board  of  Public 
Works,  1  Grat.  364. 

*  Union  Bank  v.  Jacobs,  6  Humph.  615;  Junction  Railw.  v.  Ruggles, 
7  Ohio  St.  1. 


§§  753-756.]  MORTGAGE   OF   FRANCHISE.  387 

according  to  the  rules  and  by-laws  of  the  corporation,  if  there 
are  any,  or  it  will  be  void.^ 

§  755.  Upon  general  principles,  as  before  stated,  a  corpora- 
tion, being  the  absolute  owner  of  its  property,  may  sell,  convey, 
and  mortgage  it.  Such  rights  are  among  the  essential  inci- 
dents to  property,  and  they  are  inherent  in  property  whether 
owned  by  corporations  or  private  individuals,  But  when  the 
legislature  of  a  State  charters  corporations  for  public  purposes, 
and  authorizes  them  to  take  lands  and  build  roads,  to  run  trains 
of  cars  and  receive  tolls,  such  corporations  undertake,  in  return 
for  the  privileges  granted,  to  perform  the  duties  for  which  they 
are  chartered.  The  general  right  and  ownership  of  property 
carries  with  it  the  right  to  sell  it,  or  to  convey  it  in  mortgage, 
which  may  become  an  absolute  sale  by  foreclosure.  If  the  cor- 
poration makes  a  mortgage  of  all  its  property  simply,  Avithout 
naming  its  franchise,  can  the  mortgagee  by  foreclosure  remove 
the  property  to  another  place,  and  prevent  the  corporation  from 
performing  its  duties,  or  can  the  mortgagee  use  the  property 
as  the  corporation  used  it?  It  is  apparent  that  the  removal 
of  the  property  to  another  place  would  destroy  the  larger  part 
of  its  value,  as  well  as  deprive  the  corporation  of  the  power  of 
exercising  its  franchise. 

§  756.  It  is  said  that  the  franchise  of  a  corporation  consists 
of  two  parts,  or  rather  of  two  franchises  distinct  and  indepen- 
dent of  each  other  in  their  nature ;  the  one  is  the  franchise  to 
be  a  corporation,  to  have  a  legal  entity,  a  corporate  name,  and 
the  right  and  power  of  suing  and  being  sued,  and  of  performing 
other  acts  requiring  a  legal  existence  as  an  independent  being ; 
the  other  is  the  franchise  or  privilege  of  doing  a  particular 
business  in  a  certain  manner,  and  of  collecting  or  receiving 
tolls,  fees,  or  compensation  for  doing  such  acts.  It  is  conceded 
by  all,  that  the  right,  privilege,  or  franchise  to  be  a  corporation 

^  Gordon  v.  Preston,  1  Watts,  385 ;  Richards  v.  Railway,  14  N.  H.  135. 


388  TRUSTEES    FOR   BONDHOLDERS.  [CHAP.  XXIV. 

cannot  be  sold,  mortgaged,  or  assigned  to  any  other  person  or 
body  of  persons.  The  State  having  granted  this  privilege  to  a 
particular  body,  it  cannot  be  transferred  to  another  body  with- 
out the  sanction  of  the  power  that  granted  it.^ 

§  757.  It  is  well  established  that  a  corporation,  like  an  indi- 
vidual, may  mortgage  its  real  and  personal  property,  and  the 
mortgagees  acquire  by  foreclosure  the  absolute  ownership  of 
such  property.  If  such  property  is  disconnected  from  the  gen- 
eral purposes  of  the  corporation,  no  questions  can  arise.  The 
mortgagees  or  trustees  can  enter  upon  and  occupy  and  improve 
the  property  in  the  same  manner  that  other  property  is  im- 
proved. But  if  the  property  is  essential  to  the  business  of  the 
corporation,  can  the  mortgagees  or  trustees  enter  and  take  such 
property  and  remove  it,  so  far  as  it  is  personal,  and  sell  the 
real  estate  ?  Or  can  they  remove  the  rails  and  superstructure 
of  the  road-bed,  and  take  away  the  power  of  the  corporation  to 
perform  its  duties  to  the  public  ?  If  the  mortgagees  cannot  do 
these  things,  can  they  use  the  property  in  the  position  in  which 

^  Bowman  v.  Walker,  2  McLean,  393 ;  Bardstown,  &c.  Railw.  v.  Met- 
calfe, 4  Met.  (Ky.)  200 ;  2  Redf.  on  Railw.  514  (3d  ed.),  n. ;  Coe  v.  Colum- 
bus, &c.,  Railw.  10  Ohio  St.  372 ;  State  v.  Boston,  &c.,  Railway  Co.  25  Vt. 
433  ;  Hall  v.  Sullivan  Railw.  Co.  21  Law  Rep.  138 ;  2  Redf.  on  Railw.  517  ; 
Commonwealth  v.  Smith,  10  Allen,  456.  Mr.  Justice  Curtis  in  Hall  v. 
Sullivan  Railway  Co.  lU  supra,  said  :  "  Among  the  franchises  of  the  company 
is  that  of  being  ?,  body  politic  with  rights  of  succession  of  members,  and  of 
acquiring,  holding,  and  conveying  property,  and  suing  and  being  sued  by  a 
certain  name.  Such  an  artificial  being,  only  the  law  can  create ;  and,  when 
created,  it  cannot  transfer  its  own  existence  into  another  body  ;  nor  can  it 
enable  natural  persons  to  act  in  its  name,  save  as  its  agents,  or  as  members 
of  the  corporation  acting  in  conformity  with  the  modes  required  or  allowed 
by  its  charter.  The  franchise  to  be  a  corporation  is,  therefore,. not  a  sub- 
ject of  sale  and  transfer,  unless  the  law  by  some  positive  provision  has  made 
it  so,  and  pointed  out  the  modes  in  which  such  sale  and  transfer  may  be 
effected.  But  the  franchises  to  build,  own,  and  manage  a  railway,  and  to 
take  tolls  thereon,  are  not  necessarily  corporate  rights :  they  are  capable  of 
existing  in  and  being  enjoyed  by  natural  persons,  and  there  is  nothing  in 
their  nature  inconsistent  with  their  being  assignable.  Peter  v.  Kendall,  6 
B.  &  C.  703;  Com.  Dig.  Grant,  C. 


§§  756,  757.]  MORTGAGE   OF    FRANCHISE.  389 

it  is  placed  ?  Can  they  operate  the  railway  ?  Can  they  run 
trains  of  cars,  carry  passengers  and  freight,  and  receive  fares 
or  tolls  ?  If  the  legislature  has  expressly  authorized  the  cor- 
poration to  execute  a  mortgage  of  all  its  property,  including  the 
franchise  of  operating  the  railway  and  receiving  tolls,  there 
can  be  little  or  no  trouble  in  a  legal  point  of  view ;  but  if  the 
mortgage  is  executed  without  the  special  authority  of  the  legis- 
lature, can  the  corporation  mortgage  its  franchise  to  operate  its 
road  or  receive  tolls,  and  what  are  the  rights  and  powers  of 
trustees  under  such  mortgages  ?  On  the  one  side,  the  opinion 
has  been  expressed  that  a  railway  corporation  may  mortgage 
all  its  property,  including  its  road-bed  and  the  superstructure 
and  the  franchise  of  operating  or  using  it  as  a  railway,  although 
the  legislature  granted  no  such  power  to  the  corporation  in 
terms.^  On  the  other  hand,  the  opinion  has  been  very  largely 
entertained  that  a  corporation  cannot  transfer  the  franchise  of 
operating  its  road  to  another  person  or  corporation,  and  thus 
escape  the  burden  assumed  by  it  towards  the  public.^     The 

^  Allen  V.  Montsomory  Railw.  11  Ala.  437;  Mobile  &  Cedar  Point 
Railw.  V.  Tolman,  15  Ala.  472;  Pollard  v.  Maddox,  22  Ala.  321 ;  Dunham 
V.  Isett,  15  lo.  284;  Hall  v.  Sullivan  Railw.  21  Law  Rep.  138;  Pierce  v. 
Emery,  32  N.  H.  484  ;  Miller  v.  Rutland,  &c.,  Railw.  36  Vt.  452;  Bowman 
V.  Walker,  2  McLean,  393;  Dinsmore  v.  Racine,  &c.,  Railw.  12  Wis.  649  ; 
Piatt  V.  New  York  Railw.  26  Conn.  544 ;  Union  Bank  v.  Jacobs,  6  Humph. 
515  ;  Macon,  &c.,  Railw.  v.  Parker,  9  Ga.  377  ;  Briggs  v.  Terrell,  12  Ired. 
1;  Watertown  v.  White,  13  Mass.  477;  Fay  Petitioner,  15  Pick.  243; 
Felton  V.  Deal,  22  Vt.  170 ;  McCauly  v.  Givens,  1  Dana,  261  ;  1  Green 
(lo.),  498;  Clark  v.  Corporation  of  Washington,  12  Wheat.  40;  Bingham 
V.  Weiderwax,  1  Comst.  509  ;  2  Kent,  305,  307 ;  1  Redf.  Railw.  588  ;  En- 
field Toll  Bridge  v.  Hartford,  &c.,  Railw.  17  Conn.  40. 

'^  Commonwealth  r.  Smith,  10  Allen,  456 ;  Opinion  of  Justices,  9  Cush. 
611 ;  Salem  Mill  Dam  v.  Ropes,  6  Pick.  32  ;  Treadwell  v.  Salisbury  Mills, 
7  Gray,  404;  Whittenton  Mills  v.  Upton,  10  Gray,  582;  Arthur  v.  Com- 
mercial, &c.,  Bank,  9  Sm.  &  j\L  394;  State  v.  Commercial  Bank,  13  Sm. 
&  M.  569 ;  Richards  v.  Merrimack,  &c.,  Railw.  44  N.  H.  127 ;  Atkinson  v. 
Marietta,  &c.,  Railw.  15  Ohio  St.  21  ;  State  v.  Mexican  Gulf  Railw.  3  Rob. 
(^La.)  513;  Hall  v.  Sullivan  Railw.  21  Law  Rep.  138;  Pierce  v.  Emery,  32 
N.  H.  484;  Tippetts  v.  Walker,  4  IVIass.  495;  Worcester  v.  Western 
Railw.  4  Met.  564;  Troy,  &c.,  Railw.  v.  Kerr,  17   Barb.  581;  States  v. 


390  TRUSTEES    FOR   BONDHOLDERS.  [CHAP.  XXIV. 

preponderance  of  authority  would  seem  to  be  against  the  power 
of  a  corporation  to  convey  its  franchise  in  mortgage,  unless 
specially  authorized  to  do  so  by  the  legislature.  It  is,  however, 
worthy  of  observation  that  there  is  no  case  where  the  franchise 
of  a  corporation  has  been  decreed  to  pass  to  trustees  by  mort- 
gage of  its  franchise,  not  authorized  by  the  legislature  either  in 
terms  or  by  implication ;  and,  on  the  other  hand,  there  is  no 
case  where  a  mortgage  of  the  franchise  to  trustees  has  been 
held  invalid  by  reason  of  a  want  of  power  in  the  corporation  to 
convey  its  franchise. 

§  758.  The  grant  of  power  or  authority  to  a  corporation  to 
mortgage  its  franchise  need  not  be  contained  in  its  charter,  as 
a  subsequent  act  of  the  legislature  will  confer  full  power.  And 
such  grant  of  power  is  not  required  to  be  made  in  express 
terms.  It  is  sufficient  if  the  sovereign  power  assents  to  such 
mortgage.  If,  therefore,  the  mortgage  is  recognized  by  the 
legislature  in  any  way  as  an  existing  and  valid  mortgage,  it 
will  be  sufficient.^     So  a  right  of  way  may  be  mortgaged ;  and, 

Rives,  5  Ired.  297 ;  Winch  v.  Railw.  Co.  l.S  Eng.  L.  &  Eq.  506 ;  5  De  G. 
&  Sm.  562;  7  Railw.  Cas.  384;  South  Yorkshire,  &c.,  Railw.  v.  Great 
Norlhern  Railw.  19  Eng.  L.  &  Eq.  513;  3  De  G.,  M.  &  G.  576;  Beman  v. 
RafFord,  6  Eng.  L.  &  Eq.  106;  1  Sim.  (n.  s.)  550;  Wheelock  v.  Moulton, 
15  Vt.  519;  Bennington  Iron  Co.  v.  Isham,  19  Vt.  230;  Shrewsbury,  &c., 
Railway  v.  London  &  N.  W.  Railw.  21  Eng.  L.  &  Eq.  319 ;  4  De  G.,  M. 
&  G.  115  ;  6  H.  L.  Ca.  113.  It  has  been  determined,  in  a  great  number  of 
cases,  that  the  franchise  of  a  corporation  cannot  be  seized,  sold,  and  trans- 
ferred on  execution  against  the  corporation.  Commonwealth  v.  Smith,  10 
Allen,  456;  States  v.  Rives,  5  Ired.  267;  Seymour  v.  Milford,  &c.,  Railw. 
10  Ohio,  476;  Winchester,  &c.,  Turnpike  Co.  5  B.  Mon.  1;  Ammont  v. 
New  Alexandria,  &c.,  Turnpike  Co.  13  S.  &  R.  212;  Leedomu.  Plymouth 
Railw.  5  W.  &  S.  266;  Susquehanna  Canal  Co.  v.  Bonham,  9  W.  &  S.  27; 
Tippetts  V.  Walker,  4  Mass.  596.  But  a  statute  may  authorize  an  execution 
to  be  levied  on  such  franchise.  Mass.  Gen.  Stat.  c.  68,  §§  26-34;  Common- 
wealth V.  Tenth  Mass.  Turn.  5  Mass.  509. 

>  Shaw  V.  Norfolk  County  Railw.  5  Gray,  179  ;  Hall  v.  Sullivan,  &c.. 
Railw.  21  Law  Reporter,  138  ;  Pierce  v.  Emery,  32  N.  H.  484;  Richards 
V.  Merrimack  River  Railw.  44  N.  H.  127;  Chapin  v.  Vermont,  &c.,  Railw. 
8  Gray,  575. 


§§  757-759.]  MORTGAGE   OF    FRANCHISE.  391 

upon  default  of  payment,  may  be  sold  and  transferred :  but  tho 
original  purpose  for  which  such  right  of  way  was  granted  can- 
not be  defeated.^ 

§  759.  When  a  mortgage  to  trustees  is  made  by  a  railway 
corporation  of  its  franchise  and  all  its  property,  it  frequently 
becomes  an  interesting  question  to  determine  what  is  embraced 
in  the  mortgage.  In  some  cases,  it  has  been  determined  that 
the  rolling  stock  of  a  railway,  such  as  cars  and  locomotives,  is 
accessory  to  the  road-bed,  station-houses,  and  franchise,  and 
belongs  to  the  real  estate  or  road-bed  of  the  corporation  as 
fixtures,  and  cannot  be  seized,  on  execution  against  the  com- 
pany, and  sold  or  removed.^  In  other  cases,  it  has  been  held 
that  where  a  mortgage  of  the  franchise  and  property  of  a  railway 
was  authorized,  and  the  deed  in  terms  included  all  the  property 
then  owned  by  the  company,  or  thereafter  to  be  acquired,  a 
creditor  could  not  levy  an  execution  upon  property  acquired 
after  the  execution  of  the  mortgage,  if  such  property  was 
necessary  to  the  use  and  enjoyment  of  the  road  and  the  other 
property  accessory  to  it ;  and  it  was  referred  to  a  master  to 
hear  and  report  whether  the  property  seized  was  necessary  to 
the  operation  of  the  road.^  In  other  cases,  the  personal  prop- 
erty of  a  railway  corporation,  although  necessary  for  the  oper- 
ation of  the  road,  is  held  to  be  mere  personal  property,  in  no 
way  attached  or  accessory  to  the  road-bed  or  to  the  franchise, 
and  that  such  personal  property  can  be  seized  on  execution, 
and  sold  like  any  other  personal  property,  or  like  the  personal 

^  Junction  Railw.  Co.  v.  Rujjfgles,  7  Oliio  St.  1. 

*  Farmers'  Loan  &  Trust  Co.  v.  Hi'ndric^kson,  25  Barb.  484  ;  Palmer  v. 
Forbes,  2  111.  300;  Hunt  v.  Bullock,  23  111.  320;  Pennock  v.  Coe,  23  How. 
117;  State  v.  Northern  Railw.  18  Md.  193;  Farmers'  Loan,  &c.,  Co.  v. 
Commercial  Bank,  11  Wis.  207. 

*  Ludlow  V.  Hurd  (Superior  Court,  Cincinnati),  2  lledf.  on  Railw.  542- 
545;  Willink  v.  Morris  Canal,  «fec.,  Co.  3  Green,  Ch.  377;  Pierce  v. 
Emery,  32  N.  H.  484;  Coe  v.  Pennock,  6  Am.  Law.  Reg.  27;  23  How. 
117  ;  Ammont  v.  New  Alexandria,  &c.,  Turnp.  Co.  13  S.  &  R.  212  ;  Phillips 
V.  Winslow,  18  B.  Mon.  431 ;  Londenscblager  v.  Benton,  3  Grant's  Ca.  384. 


392  TRUSTEES   FOR   BONDHOLDERS.  392 

property  of  any  other  owner.^  But,  however  this  may  be  finally 
determined,  there  seems  to  be  no  reason,  upon  principle,  why 
a  mortgage  to  trustees  may  not  embrace  all  property  subse- 
quently acquired,  if  such  property  is  absolutely  essential  to  the 
operation  of  the  road.  The  rule  at  law,  that  property  not  at 
the  time  owned  by  a  mortgagor  cannot  be  mortgaged  by  him, 
is  a  technical  rule  ;  and  there  is  no  reason  why  a  railway  mort- 
gage to  trustees  for  bondholders  should  not  cover  and  embrace 
all  the  property  necessary  for  the  business  of  the  corporation, 
although  such  property  may  have  been  acquired  by  the  corpo- 
ration after  the  date  of  the  mortgage.  Consequently  it  has 
been  held,  whenever  the  question  has  arisen,  that,  if  the  deed 
embraced  subsequently  acquired  property,  such  property  passed 
to  the  trustees.^ 

§  760.  Trustees  for  bondholders  are  governed  by  the  general 
rules  that  govern  trustees  in  the  ordinary  performance  of  the 
duties  of  a  trust.  They  must  consult  the  wishes  and  interests 
of  the  cestuis  que  trust  or  bondholders,  and  they  may  be  re- 
moved, or  enjoined,  or  ordered  to  proceed  in  the  performance 
of  their  duties,  as  the  exigencies  of  the  case  may  require. 
Thus,  if  they  refuse  to  take  steps  to  foreclose  the  mortgage 
after  the  bonds  have  matured,  they  may  be  removed,  and 
others  appointed  in  their  place.'^      But  courts  of  equity  may 

'  Stevens  v.  Buffalo  &  N.  Y.  Railvv.  31  Barb.  590;  Beardsley  v.  Ontario 
Bank,  31  Barb.  619. 

^  Phillips  V.  Winslow,  18  B.  Mon.  431 ;  Howe  v.  Freeman,  14  Gray,  566  ; 
as  to  the  point  of  after-acquired  property.  Coe  v.  Peacock,  14  Ohio  St.  187  ; 
Coe  V.  Columbus,  &c.,  Railw.  10  Ohio  St.  372;  Coe  v.  Knox  Co.  Bank,  10 
Ohio  St.  412;  Coe  v.  McBrown,  22  Ind.  252;  Pierce  v.  Emery,  32  N.  H. 
484;  State  v.  Northern  Railway  Co.  18  Md.  193  ;  First  Mortgage  Bondholders 
V.  Maysville,  &c.,  Railw.  9  Am.  Railw.  Times,  No.  31;  Smith  v.  Atkins,  18  Vt. 
461.  A  somewhat  different  doctrine  was  held  in  Beardsley  u.  Ontario  Bank, 
31  Barb.  619 ;  Stevens  v.  Buffalo  &  N.  Y.  Railw.  31  Barb.  590.  And  see 
State  V.  Somerville,  &c..  Railway,  4  Dutch,  21;  State  i'.  Mexican  Gulf 
Railw.  3  Rob.  (La.)  513;  Buffalo  R.R.  Co.  v  Lampson,  47  Barb.  533; 
Williamson  v.  New  Albany,  &c..  Railway  Co.  1  Bissell,  207. 

*  In  matter  of  Mechanics'  Bank,  2  Barb.  S.  C.  446. 


§§  759-961.]  FORECLOSURE.  393 

refuse  to  give  the  railway  and  its  property  into  the  hands  of  the 
trustees  for  the  Ijondholders,  or  to  appoint  receivers,  although 
there  is  a  breach  of  the  terms  of  the  mortgage,  and  a  default 
in  paying  the  interest  upon  the  bonds.  If  there  has  been  such 
a  course  of  dealing  between  the  bondholders  and  trustees  on  the 
one  side,  and  the  railway  company  on  the  other,  or  if  there  are 
any  other  circumstances  which  render  a  sale  or  possession  by 
the  trustees  inequitable  or  improper,  or  hazardous  to  the  best 
interests  of  all  parties,  the  court  will  refuse  to  interfere,  but 
will  make  such  orders  as  will  protect  the  equitaljle  rights  of  the 
parties.^ 

§  761.  If  the  deed  to  the  trustees  is  a  mere  trust  for  sale  in 
case  the  bonds  are  not  paid  according  to  their  terms,  the  trus- 
tees can  do  nothing  but  sell  the  property  at  public  or  private 
sale  as  the  provisions  of  the  trust-deed  direct ;  ^  but  if  the 
trust-deed  is  a  mortgage  of  the  road-bed  franchise  and  other 
property,  the  trustees  may  take  possession  of  the  property  and 
foreclose  the  mortgage  by  strict  foreclosure,  according  to  the 
rules  of  law,  although  the  mortgage  contains  a  power  of  sale, 
and  full  directions  as  to  the  manner  in  which  the  trustees  shall 
proceed  in  the  sale.  In  this  resi)ect,  the  mortgage  of  a  railway 
with  its  franchise  and  other  property  does  not  differ  from  mort- 
gages of  real  estate.  The  power  to  sell  contained  in  the  deed 
docs  not  exclude  other  modes  of  foreclosure  provided  by  law, 
but  is  in  addition  to  them  ;  and  trustees  may  proceed  to  fore- 
close in  the  manner  which  they  may  judge  to  be  most  beneficial 
to  the  interests  committed  to  their  charge.  So,  if  the  deed  pro- 
vides that  they  shall  sell  in  a  certain  manner,  they  may  apply 
to  the  court  for  a  decree  of  sale.^ 

^  Williamson  v.  New  Albany,  &c..  Railway  Co.  1  Bissell,  207. 

»  Jenkins  v.  Row,  11  Eng.  L.  &  Eq.  297;  5  De  G.  &  S.  107;  IG  Jur. 
1131. 

8  Hall  V.  Sullivan  Railw.  21  Law  Rep.  138;  Shaw  v.  Norfolk  Co.  Railw. 
5  Gray,  162 ;  Cbapin  v.  Vermont  &  Mass.  Railw.  8  Gray,  o7o ;  Balfe  v. 


394  TRUSTEES   FOR   BONDHOLDERS.  [CHAP,  XXIV. 

§  762.  It  sometimes  becomes  the  duty  of  trustees  to  take 
possession  of  the  mortgaged  property  and  franchise  of  a  rail- 
way, and  to  operate  and  use  the  same  for  the  accommodation 
of  the  public,  and  for  the  benefit  of  the  bondholders,  until  a 
sale  can  be  effected  to  another  corporation  authorized  to  take 
the  property,  or  until  the  bondholders  can  be  organized  into  a 
body  capable  of  managing  such  an  interest.  In  such  cases, 
the  trustees  will  be  subject  to  all  the  liabilities  of  carriers  of 
passengers  and  freight,  and  in  case  of  loss  or  damage  by  acci- 
dents, they  will  be  in  the  same  situation  as  any  other  owners 
and  managers  of  a  railroad.  This  rule  is  carried  to  the  extent 
of  making  receivers  appointed  by  the  court  liable  for  such  losses 
as  other  managers  of  railways  are  responsible  for.  There  can 
be  no  other  rule,  since  persons  having  no  control  can  be  guilty  of 
no  negligence.  If,  therefore,  redress  must  be  had  anywhere,  it 
must  be  had  against  those  who  have  the  management  and  direc- 
tion of  the  business,  and  who  may  be  guilty  of  neglect  or  care- 
lessness.^ 

§  763.  Notwithstanding  the  liabilities  thus  assumed  by  trus- 
tees for  bondholders,  if  they  accept  the  office,  they  must  per- 
form the  duties  of  the  trust.  When  they  consent  to  accept  a 
conveyance  or  mortgage  in  trust,  they  take  the  office  with  the 
possibility  of  being  called  upon  to  perform  such  duties.  They 
must  take  care  that  the  security  is  not  depreciated  or  destroyed 
by  a  stopping  of  the  operations  of  the  corporation ;  and  courts 
of  equity  will  compel  them  to  take  such  steps  as  the  safety  of 
the  bondholders  requires.     On  the  other  hand,  the  court  will 

Lord,  2  D.  &  W.  480 ;  Slade  v.  Rigg,  3  Hare,  35 ;  Wayne  v.  Hanbam, 
4  Eng.  L.  &  Eq.  147  ;  9  Hare,  62  ;  15  Jur.  506  ;  Croton,  &c.,  Co.  v.  Ryder, 
1  John.  C.  H.  611 ;  Newberg,  &c.,  Co.  v.  Miller,  5  John.  Cb.  Ill ;  Boston, 
&c.,  Co.  V.  Boston,  &c.,  Railw.  16  Pick.  625. 

^  Barter  v.  Wheeler,  49  oST.  H.  32;  Rogers  v.  Wheeler,  2  Lansing,  486; 
43  N.  Y.  598;  Lampbear  v.  Buckingham,  3  Conn.  237;  Sprague  v.  Smith, 
29^  Vt.  421;  Paige  v.  Smith,  99  ]\lass.  395;  Blumentbal  v.  Brainard,  38 
Vt.  408 ;  1  Chitty,  Plead.  38. 


§§  762, 763.]  FORECLOSURE.  395 

sustain  any  reasonable  arrangement  that  they  make  for  con- 
tinuing the  operations  of  the  corporation,  and  for  the  security 
of  the  bondholders ;  as,  where  they  make  a  lease  to  a  connect- 
ing road,  or  to  other  persons  experienced  in  such  matters,  and 
capable  of  running  a  railroad.^ 

'  Burges  v.  Knapp,  25  Vt.  1. 


396  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 


CHAPTER  XXY. 

TRUSTEES   FOR   SALE. 

§  764.  Trustees  may  not  sell  without  an  express  or  implied  power. 

§  765.  Character  of  powers  to  sell. 

§  766.  Form  of  such  powers. 

§  767.  A  power  of  sale  is  not  a  "  usual  "  power. 
§§  768,  769.  The  extent  of  such  powers. 

§  770.  How  such  powers  are  to  be  executed. 
§§  771-773.  Within  what  time  such  powers  may  be  executed. 

§  774.  In  what  manner  trustees  may  sell. 

§  775.  Tenant  for  life  as  agent  of  the  trustees. 

§  776.  Rights  of  the  tenant  for  life. 

§§  777,  778.  Where  ihey  are  to  sell  with  the  consent  of  the  cestui  que  trust  or  tenant  for 
life. 

§  779.  Cannot  delegate  the  power  of  sale. 
§§  780,  781.  Whether  they  maj'  sell  at  private  sale  or  at  auction. 

§  782.  What  notice  must  be  given. 
§§  783-785.  The  power  must  be  exercised  as  given. 

§  786.  As  to  conditions  of  the  sale. 

§  787.  Who  may  make  a  good  title. 

§  764.  A  TRUSTEE  is  seldom  justified  in  selling  the  trust 
estate  without  an  express  or  implied  authority  conferred  upon 
him  by  the  instrument  of  trust.  If  no  power  of  sale  is  con- 
tained in  the  instrument,  courts  of  equity,  upon  cause  shown, 
may  decree  a  sale.  In  sucli  case  all  parties  in  interest  should 
have  notice,  and  parties  not  sui  juris  should  have  guardians 
ad  litem  appointed.^  If  the  instrument  of  trust  contains  an 
express  or  implied  power,  the  trustee  may  enter  into  contracts 
of  sale  without  the  sanction  of  the  court ;  ^  and  if  the  trustee 
is  authorized  to  convey  the  estate  to  the  cestui  que  trust,  such 
conveyance  will  be  valid,  although  there  is  a  gift  over  in  case 
the  cestui  que  trust  dies  before  the  termination  of  the  trust ;  ^ 

'  Bush  V.  Bush,  2  Duv.  269. 

2  Bath  V.  Bradford,  2  Ves.  590;  Low  v.  Brinnan,  19  lo.  193. 

3  Sellew's  App.  36  Conn.  186,  196. 


§§  764,  765.]       FORM  AND  EXTENT  OF  POWERS  OF  SALE.  397 

but  if  the  trust  is  before  the  court  by  a  bill  filed  for  its  execu- 
tion, the  whole  matter  of  the  trust  is  within  its  jurisdiction, 
and  the  trustee  cannot  sell  without  the  sanction  of  the  court, 
even  if  the  instrument  of  trust  gives  him  an  express  power.i 
But  if  the  cause  is  before  the  court  for  the  single  purpose  of 
determining  the  validity  of  a  previous  sale,  and  such  sale  is  set 
aside,  the  trustees  may  make  a  new  sale  without  a  special 
order.2 

§  765.  The  power  of  sale  given  to  trustees  is  either  append- 
ant to  the  legal  estate,  and  takes  effect  out  of  it ;  or  it  is  a 
mere  collateral  authority,  unaccompanied  with  any  interest  in 
the  property.^  As,  where  a  testator  devises  lands  to  his  exec- 
utors or  trustees  to  sell,  the  lands  pass  to  them  coupled  with 
the  power  to  sell ;  but  if  he  directs  that  his  executors  shall  sell 
the  lands,  they  take  a  mere  naked  power  to  sell,  and  the  free- 
hold descends  to  the  heir  to  be  divested  by  the  execution  of  the 
power.*  So  if  there  is  no  direct  gift  of  the  land  to  the  exec- 
utors or  trustees,  vesting  the  title  in  them,  but  a  simple  devise 
of  the  land  to  be  sold  by  the  executors,  the  land  descends  to 
the  heir,  and  the  executors  have  but  a  naked  power.  In  all 
such  cases,  the  heirs  are  entitled  to  the  rents  and  profits  until 
the  power  is  executed,  and  their  title  divested.^     The   same 

^  Walker  v.   Snialhvood,   Ainb.   676 ;    Raymond   v.   Webb,   Lofft,   66 ; 
Drayson  v.  Pocock,  4  Sim.  283 ;  Culpepper  v.  Aston,  2  Ch.  Ca.  116. 
-  Reeside  v.  Peter,  35  Md.  221. 

*  StalFord  v.  Buckley,  2  Ves.  179;  Warneford  v.  Tliompson,  3  Ves.  Jr. 
613;  Forbes  v.  Peacock,  11  Sim.  152;  Bolton  v.  Jenks,  6  Rob.  N.  Y.  166; 
Reid  V.  Gordon,  35  Md.  184;  Prather  v.  McDowell,  8  Bush,  46. 

*  Year  Book,  9  Hen.  VI.  13  b  ;  24  b ;  Lit.  §  169  ;  Co.  Lit.  113  a ;  181  b 
Howell  V.  Barnes,  Cro.  Car.  382;  Yates  v.  Compton,  2  P.  Wms.  308 
Bergen  v.  Rennall,  1  Cain.  Ca.  Er.  16 ;  Jackson  v.  Schauber,  7  Cow.  187 
Peck  V.  Henderson,  7  Yerg.  18 ;  Peter  v.  Beverly,  10  Pet.  532 ;  1  How 
132  ;  Ferebere  v.  Proctor,  2  Dev.  &  Bat.  439  ;  1  Ired.  Eq.  143  ;  Jackson  v 
Burr,  9  John.  104;  Tainter  v.  Clark.  13  Met.  220;  Haskell  v.  House, 
3  Brevard,  242 ;  Zebach  v.  Smith,  3  Bin.  69  ;  White  v.  Howard,  52  Barb. 
294. 

*  Thompson   t;.  Gaillord,  3  Rich.  418 ;  Allen  v.  Dewitt,  3  Comst.  276 


398  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

rule  applies  where  a  trustee  is  the  devisee.^  If  the  power  to 
sell  or  appoint  is  in  gross,  or  belongs  to  a  person  having  an 
interest  in  the  estate,  such  person  may  relinquish  it ;  but  if 
it  is  collateral  simply,  the  donee  of  the  power  cannot  extin- 
guish it. 2 

§  766.  No  particular  form  of  words  is  necessary  to  create  a 
power  of  sale.  Any  words  which  show  an  intention  to  create 
such  power,  or  any  form  of  instrument  which  imposes  duties 
upon  a  trustee  that  he  cannot  perform  without  a  sale,  will 
necessarily  create  a  power  of  sale  in  the  trustee. ^  Thus  an 
assignment  in  trust  to  pay  debts  will  necessarily  imply  a  power 

Bradshaw  v.  Ellis,  2  Dev,  &  B.  Eq.  20;  Lindenberger  v.  Matlock,  4  Wash. 
C.  C.  278 ;  Marsh  v.  Wheeler,  2  Edw.  Ch.  lo6 ;  Taylor  v.  Benham,  5  How. 
269;  Braman  v.  Stiles,  2  Pick.  474;  White  v.  Howard,  52  Barb.  294; 
McKuight  V.  Winsor,  38  Mo.  132. 

1  Schwartz's  Estate,  14  Penn.  St.  49 ;  Guyer  v.  Maynard,  6  Gill  &  J. 
420.  In  Pennsylvania,  the  rule  is  changed  by  statute  1834 :  Pardon,  Dig. 
282;  and  a  power  of  sale  vests  the  title  in  the  trustee  or  executor,  and  he 
may  collect  the  rents  :  Carpenter  v.  Cameron,  7  Watts,  51 ;  Cobb  v.  Biddle, 
14  Penn.  St.  444;  Blight  v.  Ewing,  26  Penn.  St.  135.  In  New  York,  the 
rule  is  established  the  other  way,  unless  they  are  specially  authorized  to 
take  the  rents  and  profits.  Rev.  Stat.  pt.  ii.  c.  1,  tit.  2,  art.  2,  §  56 ; 
White  V.  Howard,  52  Barb.  294 ;  Ford  v.  Belmont,  7  Rob.  97 ;  Bolton  v. 
Jenks,  6  Rob.  166 ;  Pennoyer  v.  Shelden,  4  Blatch.  316.  In  all  the  United 
States,  there  are  provisions  for  sale  of  real  estate  by  administrators  and 
executoi-s  for  payment  of  debts  and  legacies  by  application  to  courts  of 
probate ;  and  so  guardians  may  sell  by  decree  of  probate  courts.  In  all 
these  cases,  the  heirs,  devisees,  or  wards  hold  the  lands  until  the  decree 
of  the  court  is  executed  by  a  sale.  Mr.  Kent  seems  to  think,  that  the 
distinction  between  a  devise  of  land  to  a  trustee  to  sell ,  and  a  devise  of  a 
power  to  a  trustee  to  sell  land,  is  shadowy.     4  Kent,  321,  n. 

*  Norris  v.  Thompson,  4  Green,  Ch.  314;  Smith  v.  Death,  5  Mad.  317; 
Hillyard  v.  Miller,  10  Barr,  326;  Albany's  Case,  1  Rep.  HI;  West  v. 
Berry,  1  R.  &  M.  436 ;  Miles  v.  Knight,  12  Jur.  666 ;  Bickley  v.  Guest, 
1  R.  «fe  M.  440;  Horner  v.  Swann,  1  T.  &  R.  430. 

3  Going  V.  Emery,  16  Pick.  11;  Williamson  v.  Suydam,  6  Wall.  723; 
Rankin  v.  Rankin,  36  111.  293 ;  Hamilton  v.  Buckminster,  L.  R.  3  Eq.  323 ; 
State  V.  Cincinnati,  16  Ohio  St.  169  ;  Fluke  v.  Fluke,  1  Green,  Ch.  478 ; 
Macomb  v.  Kearney,  1  Green,  Ch.  189. 


§§  765-767.]   FORM  AND  EXTENT  OF  POWERS  OF  SALE.       399 

of  sale,  though  none  is  given  in  words. ^  A  devise  and  direc- 
tion to  divide  and  pay  over  the  shares  to  legatees,  where  a 
division  is  imiiracticable,  implies  a  power  to  sell.  A  mere 
direction  to  divide  is  not  enough:  there  must  be  some  further 
active  duty  to  perform.^  So  any  form  of  trust  from  which  a 
power  to  convey  can  be  inferred  will  authorize  a  sale  :  ^  as  where 
a  direction  is  given  to  sell  personal  estate,  and  invest  the  pro- 
ceeds in  land  which  is  to  remain  personalty  for  the  j)urposes 
of  the  trust,  the  trustees  have  a  power  of  sale  over  the  land 
purchased  ;  ^  or  where  a  will  contained  these  words,  "  I  sell  to 
A.  B.  a  parcel  of  land  described,  for  six  thousand  dollars,  if  my 
executor  is  satisfied  with  the  payment,"  it  was  held  that  a  power 
of  sale  by  the  executor  was  implied  ;  ^  but  a  power  of  sale  given 
in  a  will  does  not  apply  to  lands  which  the  testator  has  already 
made  a  written  contract  to  sell,^  though  it  may  ajjply  to  lands 
received  in  place  of  those  to  which  the  original  power  applied.' 
If  a  widow  waives  the  provisions  made  for  her  in  a  will,  a 
power  of  sale  in  the  will  is  not  thereby  invalidated  ;  ^  and  if  a 
trustee  for  sale  dies  before  the  execution  of  his  trust,  a  suc- 
cessor may  be  appointed  to  carry  the  trust  or  sale  into  execii- 
tion.9 

§  767.  If  a  will  directs  an  estate  to  be  settled  "  to  uses  in 
strict  settlement,"  a  power  of  sale  cannot  be  introduced  into 
the  settlement,  even  with  the  consent  of  the  tenant  for  life.     If 

1  Wood  V.  White,  4  M.  &  Cr.  481. 

*  Winston  v.  Jones,  6  Ala.  550;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Moore 
V.  Lockelt,  2  Barr,  69  ;  Clark  j;.  Riddle,  11  S.  &  11.  311;  Stott  v.  Steward, 
27  Bcav.  309;  Mapps  v.  Tyler,  43  Barb.  421;  Rankin  v.  Rankin,  36  111. 
293. 

^  Soutli  Scituate  Savings  Bank  v.  Ross,  11  Allen,  443. 

*  Tait  V.  Lathbury,  L.  R.  1  Eq.  174;  Stockbridge  v.  Stockbridge,  11 
Allen,  244. 

*  Jones  V.  Jones,  2  Beas.  236. 

«  Roome  r.  Pl.illips,  27  N.  Y.  357. 
^  Price  V.  Iltiey,  22  Ind.  18. 

*  Iluyier  v.  Kin^rsland,  3  Stockt.  406. 
»  Buchanan  v.  Hart,  31  Tex.  047. 


400  TRUSTEES    FOR    SALE.  [CHAP.  XXV. 

the  will  gives  direction  for  the  insertion  of  all  proper  powers 
and  authorities  for  mahlng  leases,  and  doing  other  acts  accord- 
ing to  circumstances,  a  power  of  sale  cannot  be  inserted.^  But 
where  marriage  articles  contained  a  provision  for  a  settlement 
"  with  all  the  usual  and  proper  powers,"  it  was  held  that  powers 
of  sale  and  exchange  were  properly  introduced .^  In  such  arti- 
cles, if  tliere  is  no  positive  direction  for  the  insertion  of  powers 
of  sale,  or  at  least  no  direction  for  the  insertion  of  all  usual 
and  proper  powers,  powers  of  sale  cannot  be  introduced. 

§  768.  A  trust  with  a  power  of  sale  '"  out  and  out "  will  not 
authorize  a  mortgage  ;  ^  and  a  trust  for  sale,  with  nothing  to 
negative  the  settlor's  intention  to  convert  the  estate  absolutely, 
will  not  authorize  the  trustees  to  execute  a  mortgage.*  If  the 
trustee  and  cestui  que  trust  unite  in  mortgaging  the  property 
in  breach  of  the  trust,  they  cannot  set  up  the  breach  of  the 
trust  as  a  defence  to  the  mortgage.^  But  where  an  estate  is 
devised  to  trustees,  charged  with  debts,  and  subject  thereto 
upon  trust  for  certain  parties,  so  that  a  sale,  though  it  may  be 
authorized  and  required,  is  not  the  testator's  sole  object,  the 
trustees  may,  for  the  purpose  of  paying  the  debts,  more  prop- 

'  Brewster  v.  Angell,  1  J.  &  W.  625 ;  Horn  v.  Barton,  Jac.  437. 

2  Peake  v.  Penlington,  2  V.  &  B.  311  ;  Hill  v.  Hill,  6  Sim.  136  ;  Williams 
V.  Carter,  2  Sugd.  Pow.  App.  23 ;  2  Sugd.  Pow.  484. 

'  Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  645  ;  Page  v.  Cooper,  16  Beav. 
400. 

*  Ibid.;  Haldenby  v.  Spofforth,  1  Beav.  390;  1  Eng.  Jur.  (Am.  ed.)  198; 
Devaynes  v.  Robinson,  24  Beav.  86;  Eland  v.  Baker,  29  Beav.  137;  Davey 
V.  Durant,  1  De  G.  &  Jo.  535  ;  Hubbard  v.  German  Cath.  Cong.  34  lo.  31 ; 
Bloomer  v.  Waldron,  3  Hill,  361  ;  Waldron  v.  McComb,  1  Hill,  111 ;  Wood 
V.  Goodridge,  6  Cush.  117 ;  Russell  v.  Russell,  36  N.  Y.  581 ;  Albany  Ins. 
Co.  V.  Bay,  4  Comst.  9 ;  Coutant  v.  Servoss,  3  Barb.  133 ;  4  Kent,  345 ; 
Cummings  v.  Williamson,  1  Sandf.  Ch.  17  ;  Williams  v.  Woodard,  2  Wend. 
492  ;  Mills  v.  Banks,  3  P.  Wnis.  9  ;  Butler  v.  Duncomb,  1  P.Wms.  448.  In 
Pennsylvania  a  different  rule  prevails,  founded  upon  the  old  case  of  Lancaster 
V.  Dolan,  1  Rawle,  231,  as  a  rule  of  property.  See  the  rule  discussed  in  the 
late  case  of  Zane  v.  Kennedy,  73  Penn.  St.  183 ;  and  see  Penn.  Ins.  Co.  v. 
Austen,  42  Penn.  St.  24 ;  Watson  v.  James,  15  La.  An.  386. 

*  Rider  v.  Sisson,  7  R.  I.  341. 


§§  767,  768.]      FORM  AND  EXTENT  OF  POWERS  OP  SALE.  401 

erly  mortgage  than  sell.^  Where  the  sale  is  for  the  purpose 
of  raising  a  particular  charge,  and  the  estate  is  settled  sulyect 
to  that  charge,  it  may  be  proper  to  raise  the  money  by  mort- 
gage, and  the  court  will  support  a  mortgage  as  a  conditional 
sale  within  the  power,  and  as  a  proper  mode  of  raising  the 
money.-  Where  an  estate  is  devised  to  apply  the  rents  for  a 
term  of  years,  in  discharging  incumbrances,  and  if,  for  any 
reason  whatever,  in  the  opinion  of  the  trustees  a  sale  was 
necessary,  "  they  were  authorized  to  sell ;"  a  purchaser  cannot 
object  that  the  amount  of  the  incumbrances  did  not  justify  a 
sale  of  the  whole  ;  for  the  necessity  depended  upon  the  opinion 
of  the  trustees,  and  the  conveyance  is  evidence  that  they  thought 
it  necessary.'^  On  the  other  hand,  a  trust  to  raise  money  by 
mortgage  will  not  authorize  a  sale,  though  it  would  be  more 
beneficial  to  the  estate  ;  nor  can  the  court  substitute  the  one 
for  the  other.^  In  the  absence  of  any  direction,  a  power  to 
mortgage  will  not  authorize  a  mortgage  with  a  power  of  sale, 
since  a  trustee  cannot  authorize  another  to  do  what  he  cannot 
do  himself.^  But  a  power  to  raise  money  hy  sale  or  mortgage^ 
has  been  held  to  authorize  a  mortgage  with  a  power  of  sale. 
The  want  of  power  in  the  trustee  to  delegate  his  authority  to 
sell  is  an  objection  to  tins ;  for,  if  it  is  assumed  that  tbe  power 
of  sale  is  an  incident  to  the  mortgage,  it  follows  that  a  power 
to  mortgage  alone  authorizes  a  power  of  sale  mortgage.*^     In 

»  Ball  V.  Harris,  4  M.  &  Cr.  264;  8  Sim.  485;  Holme  r.  Williams, 
8  Sim.  557  ;  Lancaster  v.  Dolaii,  1  Rawlc,  231 ;  Williams  v.  Woodard, 
2  Wend.  492;  Bootle  i-.  Bkmdell,  1  Mer.  193,  212. 

«  Stroughill  V.  Anstoy,  1  De  G.,  M.  &  G.  645 ;  Page  v.  Cooper,  16  Beav. 
400;  Leavitt  v.  Pell,  25  N.  Y.  474. 

2  Rendlesham  v.  Meux,  14  Sim.  249. 

*  Drake  v.  Whitmore,  5  De  G.  &  Sm.  619. 

*  Clarke  v.  Royal  Panopticon,  4  Drew.  26;  Russell  v.  Plaice,  18  Beav. 
21 ;  Leigh  v.  Lloyd,  2  De  G.,  Jo.  &  S.  330.  See  to  the  contrary  In  re 
Chawner's  Will,  L.  R.  8  E(i.  469. 

•5  Bridges  v.  Longman,  24  Beav.  27.  Bat  it  is  said  that  a  s;ilc  of  part 
of  the  land,  or  a  mortgage,  does  not  exhaust  the  power  of  sale.  Asay  v. 
Hoover,  5  Barr,  21 ;  Pratt  v.  Oliver,  2  McLean,  309. 

VOL.  II.  26 


402  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

all  cases  where  the  court  may  order  money  to  be  raised  out  of 
an  estate  for  the  payment  of  debts,  legacies,  or  portions,  it 
may  direct  a  sale  or  a  mortgage  with  a  power  of  sale.^  But 
where  trustees  have  power  to  sell  an  equity  of  redemption, 
and  are  directed  to  apply  the  proceeds  to  the  discharge  of  the 
mortgage  and  pay  the  balance  to  the  settlor,  they  may  sell 
subject  to  the  mortgage,  notwithstanding  the  direction.^ 

§  769.  A  power  to  sell  does  not  authorize  an  exchange  ;  ^ 
nor  does  a  power  to  trustees  to  sell  authorize  a  partition,*  and 
whether  a  power  to  sell  and  exchange  will  do  so  is  as  yet  doubt- 
ful.5  Where  an  estate  was  to  be  divided  if  the  trustees  thought 
fit,  it  was  held  that  the  trustees  had  no  power  to  divide  ;  they 
could  only  determine  whether  it  ought  to  be  divided.^  An 
exchange  or  partition  may  be  effected  circuitously,  under  a 
power  of  sale  only,  by  using  the  form  of  a  sale  instead  of  a 
partition  or  exchange ;  nor  can  the  transaction  be  impeached 
as  an  improper  execution  of  the  power  if  made  bona  fideJ 
Trustees,  with  a  power  of  sale  and  exchange,  may  pay  money 
as  owelty  of  exchange  without  any  express  authority  for  the 
purpose.^  But  a  power  to  sell  does  not  authorize  a  conveyance 
to  a  legatee  in  payment  of  a  legacy,^  nor  to  a  cestui  que  trust  to 
secure  a  debt.^'^     Leases  cannot  be  granted  by  trustees  under 

'  Selby  V.  Cooling,  23  Beav.  418. 

2  Manser  v.  Dix,  8  De  G.,  M.  &  G.  703;  Fluke  v.  Fluke,  1  Green,  Ch.  478. 
^  Ringgold  V.  Ringgold,  1  H.  &  Gill,  11  ;  Taylor  v.  Galloway,  1  Hera. 
232. 

*  INIcQueent,'.  Farquhar,  11  Ves.  467.  Although  it  is  an  undivided  share. 
Brassey  v.  Chalmers,  4  De  G.,  M.  &  G.  528;  16  Beav.  223;  Bradshaw  v. 
Fane,  3  Drew.  536. 

*  Abel  V.  Heathcote,  4  Bro.  Ch.  278 ;  2  Ves.  Jr.  98 ;  Att'y-Gen.  v. 
Hamilton,  1  Mad.  214;  2  Sugd.  Pow.  506. 

«  Naglee's  Estate,  52  Penn.  St.  154. 

"  Ibid. ;  Marshall  v.  Sladden,  7  Hare,  438  ;  Leigh  v.  Ashburton,  11  Beav. 
478. 

8  Bartram  v.  Whicheote,  6  Sim.  86 ;  2  Sugd.  Pow.  507. 

9  Russell  V.  Russell,  36  N.  Y.  581. 
'0  Goode  V.  Comfort,  39  Mo.  313w 


§§  768-770.]       FORM    AND   EXTENT    OF   THE   POWER.  403 

mere  powers  of  sale,^  And  so  executors,  as  quasi  trustees  for 
sale,  would  be  justified  in  granting  a  lease  only  under  special 
circumstances.  Such  an  act  is  not  within  their  duties,  and  it 
would  be  incumbent  on  the  parties  taking  the  lease  to  show 
that  it  was  for  the  interest  of  the  parties  entitled  to  the  prop- 
erty .^  Where  property  is  given  to  trustees  with  a  power  to 
sell,  and  an  implied  or  express  power  of  management  in  the 
mean  time,  they  have  the  power  to  lease  and  to  rent  houses 
until  the  sale  is  made ;  ^  but  where  the  land  descends  to  the 
heir  or  is  devised,  and  a  naked  power  of  sale  is  given  to  a  trus- 
tee or  executor,  the  heir  or  devisee  is  entitled  to  the  profits 
and  possession  until  the  sale,  and  the  trustees  can  neither 
enter  upon  the  land  nor  grant  leases.'*  A  power  to  rent  or  sell 
lands  of  course  gives  no  power  over  land  specifically  devised.^ 

§  770.  Trustees  for  sale  may  enter  into  contracts  without 
the  previous  sanction  of  the  court  ;*^  but  if  the  administration 
of  the  trust  is  already  before  the  court,  the  trustees  cannot 
proceed  without  the  sanction  of  the  court."  Tbc  trustees  are 
bound  by  their  office  to  sell  the  estate  under  every  possible 
advantage  for  the  beneficiaries,^  and  if  there  are  different  ces- 
tuis  que  trust,  they  must  act  with  a  fair  and  impartial  attention 
to  the  interest  of  all.^     If  the  trustees  or  their  agents  fail  in 

1  Evans  v.  Jackson,  8  Sim.  217;  Mitchells  v.  Corbott,  34  Beav.  376. 

2  Hachett  v.  McNaniara,  LI.  &  Goo.  t.  Plunk.  '28;j ;  Keating  v.  Keating, 
LI.  &  Goo.  t.  Sugd.  133. 

^  Hedges  v.  Ricker,  5  John.  Ch.  103;  Burr  v.  Sim,  1  Whart.  206. 

*  Seymour  v.  BuH,  3  Day,  389. 

*  Young  V.  Swiggs,  27  Md.  020. 

«  Bath  V.  Bradford,  2  Ves.  590;  Reeside  v.  Peter,  35  Md.  222. 

'  Walker  v.  Sniallwood,  Anib.  070  ;  Raymond  v.  Webb,  Lod't,  66  ;  Dray- 
son  V.  Pocock,  4  Sim.  283;  Culpepper  v.  Aston,  2  Ch.  Ca.  116,  223;  Ree- 
side V.  Peter,  35  Md.  222. 

*  Downs  V.  Grazebrook,  3  Mer.  208 ;  Matlhie  v.  Edwards,  2  Coll.  480 ; 
Chesley  v.  Chesley,  49  Uo.  540. 

»  Ord  V.  Noel,  5  Mad.  140 ;  Anon.  6  Mad.  1 1 ;  Pechel  i'.  Fowler,  2  Anst. 
590. 


404  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

reasonable  diligence  in  inviting  competition,^  or  in  their  man- 
agement in  relation  to  the  sale  :  as,  if  they  contract  under  cir- 
cumstances of  haste  and  improvidence  ;  or  if  they  contrive  to 
advance  the  interest  of  one  party  at  the  expense  of  another,  — 
they  will  be  personally  responsible  to  the  injured  party  for  the 
loss  ;  2  and  the  court  will  refuse  to  decree  a  specific  perform- 
ance, though  the  purchaser  was  without  fault,^  or  set  the  sale 
aside.*  But  if  a  contract  is  once  fairly  made,  a  court  of  equity 
would  not  invalidate  it,  because  another  person  came  forward 
and  offered  a  larger  price. ^  Mere  inadequacy  of  price,  unless 
it  is  so  gross  as  to  be  evidence  of  fraud,*"  is  not  sufficient  to 
invalidate  a  sale,  if  the  transaction  is  in  good  faith,  and  due 
diligence  was  used  in  getting  the  best  possible  price  for  the 
property.'''  If  there  are  two  offers  equally  advantageous,  and 
one  is  preferred  by  the  cestui  que  trust,  the  trustee  is  not 
hound  for  that  reason  to  accept  that  offer,  but  he  may  act  upon 
his  own  opinion.^  The  cestui  que  trust  usually  obtains  the  best 
offer  he  can,  and  communicates  it  to  the  trustee,  who,  when 
satisfied,  ought  to  make  a  sale  which  is  advantageous  to  the 
beneficiary.^  The  trustee  should  inform  himself  of  the  value 
of  the  property,  if  necessary,  by  the  estimate  of  some  experi- 
enced person ;  '^^  and  if  he  sells  at  a  grossly  inadequate  price,  it 

'  Ibid. ;  Harper  v.  Hayes,  2  Gif.  216.  No  particular  form  of  advertise- 
ment is  required  ;  but  it  should  be  sufficient  to  identify  the  land.  Reeside 
V.  Peter,  33  Md.  120 ;  35  Md.  221. 

^  Pecliel  V.  Fowler,  2  Anst.  550;  Quackenbush  v.  Leonard,  9  Paige,  347  ; 
Ringgold  v.  Ringgold,  I  H.  &  Gill,  11;  Osgood  v.  Franklin,  2  John.  Ch. 
27;  U  John.  527;  Chesley  v.  Chesley,  45  Mo.  540. 

^  Ord  V.  Noel,  5  Mad.  440;  Turner  v.  Harvey,  Jac.  178;  Bridger  v. 
Rice,  1  J.  &  W.  74;  Mortloek  w.  Duller,  10  Ves.  292;  Hill  v.  Buckley,  17 
Ves.  394;  White  v.  Cuddon,  8  CI.  &  Fin.  766. 

^  Clarkson  v.  Creely,  35  Mo.  45  ;  Hoppes  v.  Check,  21  Ark.  585. 

5  Harper  v.  Hayes,  2  De  G.,  F.  &  J.  542,  reversing  2  Gif.  210. 

^  Ante,  §§  187,  602  z.;  Booker  v.  Anderson,  35  111.  66. 

''  Abshire  v.  Carter,  48  Mo.  300;  Bochlert  v.  McBride,  48  Mo.  505. 

8  Selby  V.  Bowie,  4  Gif  300. 

^  Palairet  v.  Cai-ew,  32  Beav.  568. 

'"  Oliver  V.  Court,  8  Price,  165;  Campbell  v.  Walker,  5  Yes.  680;  Con- 


§§  770,  771.]       WHEN    AND    HOW   THEY   MAY   SELL.  405 

is  a  l)rcacli  of  trust  wliicli  affects  the  title  in  tlie  hands  of  the 
purchaser,^  In  no  case  will  the  court  enforce  the  specific  per- 
formance of  a  contract,  which  amounts  to  a  breach  of  trust.^ 
A  trustee  who  takes  no  active  part  in  the  sale  is  equally  respon- 
sible, for  he  cannot  delegate  his  power  to  a  cotrustee  ;  and 
where  a  trust  is  confided  to  several,  they  are  all  equally  respon- 
sible, and  cannot  excuse  themselves  for  neglecting  any  of  their 
duties,^  and  they  must  all  join  in  the  deed.^ 

§  771.  Trustees  will  be  allowed  a  reasonable  time  for  dis- 
posing of  the  estate  even  when  directed  to  sell  with  all  conven- 
ient speed ;  for  such  direction  is  implied  by  law,  and  does  not 
render  a  sale  imperative.^  On  the  other  hand,  where  there  is 
no  immediate  emergency,  it  would  be  a  breach  of  trust  to  force 
on  the  sale  at  a  manifestly  disadvantageous  time.^  If  the  power 
is  "  to  sell  at  such  times  and  in  such  manner  as  they  shall  think 
fit,"  they  are  not  authorized,  as  affecting  the  cestuis  que  trust, 
to  postpone  the  sale  arbitrarily  for  an  indefinite  period.'  Such 
postponement  might  vary  the  rights  of  the  tenant  for  life  and 
remainder-men,  and  so  interfere  with  the  settlor's  intention. 

noUy  V.  Parsons,  3  Ves.  628 ;  Siigd.  V.  &  P.  (8th  Am.  ed.)  21G.  §§  43, 
4-4,  and  notes. 

^  Stevens  r.  Austen,  7  Jur.  (x.  s.)  873;  Wormeley  v.  Wormeley,  1 
Brock.  330;  8  "Wheat.  421. 

-  Wood  17.  Richardson,  4  Beav.  17G ;  Fuller  v.  Knight,  6  Beav.  205 ; 
Thompson  v.  Blackstone,  G  Beav.  470;  Sneesby  v.  Thorne,  7  De  G.,  M.  & 
G.  399 ;  Mulholland  v.  Belfast,  9  Ir.  Ch.  204. 

8  Berger  v.  Duff,  4  John.  Ch.  368 ;  Oliver  v.  Court,  8  Price,  1C6 ;  In  re 
Chertsey  Market,  6  Price,  285. 

<  Ante,  §§  412,  413. 

*  Buxton  V.  Buxton,  1  U.  &  C.  80;  Garrett  v.  Noble,  6  Sim.  504;  Fry 
V.  Fry,  27  Beav.  144;  Fitzgerald  v.  Jervoise,  5  Mad.  25;  Viekers  v.  Scott, 

3  M.  &  K.  600. 

8  Hunt  V.  Bass,  2  Dev.  Eq.  297 ;  Johnston  v.  Eason,  3  Ired.  Eq.  330 ; 
Quarles  v.  Laty,  4  Munf.  251.  If  necessary,  on  good  cause  shown,  the 
court  will  give  the  trustee  leave  to  postpone   a  sale.     Morris  v.  Morris, 

4  Jur.  (N.  s.)  802-804. 

'  Walker  v.  Shore,  19  Ves.  391 ;  Hawkins  v.  Chappell,  1  Atk.  G23. 


406  TEUSTEES  FOR  SALE.         [CHAP.  XXV. 

If,  therefore,  they  neglect  to  sell  without  sufficient  reason,  they 
would  be  answerable  for  any  depreciation,  and  would  be  decreed 
,  to  account  for  interest  instead  of  rents.^  A  trust  "  to  sell  with 
all  convenient  speed  and  within  five  years  "  is  directory  only, 
and  the  trustees  can  sell  and  make  a  good  title  after  five  years.^ 
But  if  the  time  of  sale  is  so  fixed  as  to  be  of  the  essence  of  the 
power,  as  by  express  directions,  it  must  be  executed  as  given 
and  at  the  time  appointed,^  and  if  trustees  for  sale  after  a  par- 
ticular date  or  event,  anticipate  the  time,  they  will  be  respon- 
sible for  all  loss.^ 

§  772.  But  a  power  of  sale  or  mortgage  to  raise  portions 
should  not  be  exercised  until  the  money  is  wanted  ;  as,  a  power 
to  raise  a  specific  sum  for  A.,  payable  at  twenty-one  or  at  her 
marriage,  cannot  be  exercised  until  the  interest  is  vested ;  for 
should  the  money  be  lost  or  the  investment  prove  deficient,  A. 
might  call  upon  the  estate  again  for  her  portion.^  So  where 
there  was  a  trust  of  a  term  to  raise  <£ 3,000  for  children,  payable 
at  their  respective  ages  of  twenty-one  or  marriage,  it  was  held 
that  the  money  could  not  all  be  raised  when  the  eldest  arrived 
at  twenty-one,  as  the  younger  children  could  not  be  deprived  of 
the  security  of  the  estate  for  their  portions.*^  But  from  the 
inconvenience  of  several  sales  or  mortgages,  the  court  will  lean 
to  such  construction  of  the  instrument,  if  possible,  that  there 
shall  be  but  one  exercise  of  the  power ;  as,  where  the  trustees 
of  a  marriage  settlement  were  directed  after  the  husband's 
death  to  raise  by  sale  or  mortgage,  if  there  should  be  more 

1  Fry  I'.  Fry,  27  Beav,  144;  Pattenden  v.  Hobson,  1  Eq.  R.  28.  In 
Wightwick  V.  Lord,  6  H.  L.  Ca.  217,  the  trustees  were  made  answerable 
for  the  value  of  the  property  of  a  mine,  as  they  should  have  sold  a  year 
after  the  testator's  death. 

'^  Ante,  §  490 ;  Pearce  v.  Gardner,  10  Hare,  287 ;  Cuff  v.  Hall,  1  Jur. 
(n.  s.)  973 ;  Smith  v.  Kenney,  33  Tex.  283 ;  Shatter's  App.  4  Penn.  St.  83. 

^  Booraera  v.  Wells,  4  Green,  Ch.  87. 

*  Isham  V.  Delaware,  «S:c.,  R.  R.  Co.  3  Stockt.  227. 

*  Dickenson  v.  Dickenson,  3  Bro.  Ch.  19. 
6  Wynter  v.  Bold,  1  S,  &.S.  607. 


§§  771-774.]       WHEN'   AND    HOW   THEY   MAY   SELL.  407 

than  three  children,  the  sum  of  £10,000  for  their  portions,  the 
shares  to  be  payable  at  twenty-one  or  marriage,  and  "  no  mort- 
gage was  to  Ije  made  until  some  one  of  the  portions  should  become 
payable,"  the  Lord-Chancellor  said,  that,  on  the  whole  instru- 
ment, the  whole  sum  of  £10,000  was  to  be  raised  at  once.^ 

§  773.  If  an  estate  is  vested  in  trustees  for  A.  for  life,  and 
then  to  sell,  they  cannot  sell  during  the  life  of  A.,  however 
beneficial  it  may  be  for  all  parties  interested.^  But  if  the  devise 
is  to  A.  for  life,  and  after  her  decease  to  trustees,  "  to  sell  as 
soon  as  conveniently  may  be  after  the  testator's  decease,"  the 
trustees,  joining  with  A.,  can  convey  a  good  title.^  So  if  a  mar- 
riage settlement  gives  a  power  of  sale  to  the  trustees,  and  power 
of  appointment  to  the  cestui  que  trust,  the  exercise  of  the  power 
of  appointment  does  not  destroy  the  power  of  sale.*  If  the 
tenant  for  life  and  the  trustees  of  the  remainder  join  in  a  sale 
for  a  gross  sum,  the  purchaser  takes  a  good  title,  and  the  tenant 
for  life  and  the  trustees  may  apportion  the  purchase-money :  if 
they  cannot  agree,  the  court  may  do  it.^  Generally,  trustees 
for  the  sale  of  an  aliquot  part  of  an  estate  may  join  in  a  sale 
of  the  whole  for  an  entire  sum,  and  the  purchase-money  may 
be  apportioned  by  the  parties  or  the  court.^  But  a  purchaser 
cannot  be  compelled  to  take  such  a  title,  if  the  interest  of  the 
cestui  que  trust  has  not  been  sold  under  the  most  advantageous 
circumstances,  nor  if  the  nature  of  the  case  is  such  that  the 
purchase-money  cannot  be  apportioned  upon  an  intelligible 
principle.^ 

§  774.  A  trustee,  like  any  other  vendor,  must  make  a  good 
title  to  the  purchaser ;  ^  therefore  the  most  prudent  course  is  to 

'  Gillibrand  ».  Goold,  5  Sim.  149. 

'  Johnstone  v.  Baker,  8  Beav.  233. 

'  Mills  V.  Uugmore,  oO  Beav.  104. 

*  In  re  Brown,  L.  R.  10  Eq.  349. 

^  Clark  V.  Seymour,  7  Sim.  67. 

«  McCarogher  v.  Wliieldon,  34  Beav.  107. 

'  Rene  v.  Oakes,  32  Beav.  555. 

"  White  V.  Foljambe,  11  Ves.  343;  McDonald  v.  Hanson,  12  Ves.  277. 


408  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

provide  for  the  title  before  selling,  either  by  an  examination  or 
stipulation,  as  the  court  in  a  suit  for  specific  performance  might 
order  the  trustee  to  pay  costs  if  the  title  is  defective.^  Trustees 
under  a  power  of  sale  have  no  power  to  split  up  the  estate  into 
land,  timber,  and  mines  ;  and  therefore  they  cannot  sell  the 
timber  separate  from  the  land,  nor  the  land,  reserving  the 
timber ;  and  this  although  there  is  a  tenant  for  life  without 
impeachment  of  waste,  who  might  cut  the  timber  ;2  and  there 
is  no  distinction  between  timber  and  minerals  ;  ^  or  they  may 
sell  several  parcels  in  one  lot  where  they  compose  a  single 
farm.^  But  the  trustees  may  divide  the  surface  into  lots,  and 
sell  part  at  one  time,  and  part  at  another.^ 

§  775.  Though  trustees  may  employ  the  tenant  for  life,  or 
cestui  que  trust,  as  agents  to  effect  a  sale,  yet  they  should  re- 
member that  they  are  interposed  to  protect  the  estate  from  the 
tenant  for  life ;  if,  therefore,  the  tenant  for  life,  by  consent  of 
the  trustees,  sells  the  estate,  receives  the  purchase-money,  and 
invests  it  in  another  estate  in  his  own  name,  he  would  be  held 
to  act  throughout  as  the  agent  of  the  trustees,  and  the  pur- 
chased estate  would  be  subject  to  the  original  trusts,*^  and  at  the 
same  time  the  trustees  would  be  guilty  of  a  breach  of  trust." 

§  776.  If  the  trust  is  for  a  tenant  for  life  without  impeach- 
ment of  waste,  it  would  be  a  breach  of  trust  for  the  trustee 

'  Edwards  v.  Harvey,  G.  Coop.  40. 

^  Cholmeley  v.  Paxton,  3  Bing.  207 ;  5  Bing.  48 ;  10  B.  &  Cr.  564 ; 
3  Russ.  565 ;  1  Russ.  &  My.  418 ;  1  CI.  &  Fin.  60. 

2  Buckley  v.  Howell,  29  Beav.  546  ;  Be  Malins,  3  Gif.  126;  Cadwalader''s 
App.  64  Penn.  St.  293. 

4  Kellogg  V.  Carrico,  47  Mo.  157. 

5  Ord  V.  Noel,  5  Mad.  438 ;  Ex  parte  Lewis,  1  Gl.  &  J.  69 ;  State  v. 
Macalester,  9  Ohio,  19 ;  Gray  v.  Sbaw,  14  Mo.  341 ;  Delaplaine  v.  Law- 
rence, 3  Comst.  301 ;  Ewing  v.  Higby,  7  Ohio,  98 ;  Thomas  v.  Townsend, 
16  Jur.  736;  Bloomer  v.  Waldron,  3  Hill,  372  ;  Gillespie  v.  Smith,  29  111. 
472;  Miller  w.  Evans,  35  Mo.  45;  Carter  v.  Abshire,  48  Mo.  300;  Sumrall 
V.  Chaffin,  48  Mo.  402. 

^  Price  V.  Blakemore,  6  Beav.  507. 
'  Mortlock  V.  BuUer,  10  Ves.  313. 


§§  774-777.]       WHEN   THE   POWER   MAY   BE   EXERCISED.  409 

to  sell  tlic  land  without  the  timber,  and  allow  the  tenants  for 
life  to  take  it,  or  the  money  for  which  it  was  sold  ;  for  although 
the  tenant  might  have  cut  the  timber,  yet  the  land  and  the 
timber  constitute  the  whole  estate,  and  it  is  the  duty  of  the 
trustee  to  sell  all  together  and  to  reinvest  the  purchase-money 
upon  the  trusts  of  the  settlement.^  So  if  trustees  may  sell 
for  payment  of  debts,  and  the  lands  subject  to  that  charge  are 
given  over  to  a  tenant  for  life  without  impeachment  of  waste, 
the  trustees  ought  not  to  raise  the  money  for  the  debts  by  a 
fall  of  the  timber,  for  that  is  a  hardship  upon  the  tenant  for 
life ;  and  if  they  resort  to  the  timber,  the  tenant  would  in 
equity  have  a  charge  upon  the  lands  for  the  proceeds.^  Nor 
should  a  sum,  to  be  invested  in  lands  for  a  tenant  for  life 
without  impeachment  of  waste,  with  remainders  over,  be  in- 
vested by  the  trustees  in  the  purchase  of  wood  or  timber 
lands  ;  for  the  tenant  might  fell  the  timber  and  get  possession 
of  the  greater  part  of  the  estate :  but  the  trustees  would  be 
justified  in  purchasing  an  ordinary  wooded  estate,  as  it  is  not 
to  be  supposed  that  it  was  intended  they  should  purchase  lands 
with  no  trees  upon  it.^ 

§  777.  "Where  trustees  had  a  power  of  sale,  to  be  exercised 
with  the  consent  of  the  tenant  for  life,  with  a  direction  to 
invest  the  proceeds  in  another  purchase  with  all  convenient 
speed,  and  in  the  mean  time  to  invest  them  upon  some  proper 
security,  Lord  Eldon  said :  "  The  object  of  the  sale  must  be 
to  invest  the  money  in  the  purchase  of  another  estate  to  be 
settled  to  the  same  uses,  and  the  trustees  are  not  to  be  satis- 
fied with  probability  upon  that,  but  it  ought  to  be  with  refer- 
ence to  an  ol)ject  at  that  time  supposed  practicable,  or,  at  least, 

'  Cholmeley  v.  Paxton,  3  Bing.  207  ;  5  Bing.  48  ;  3  Russ.  565 ;  2  Moore 
&  P.  127 ;  10  B.  &  Cr.  564 ;  Cockerell  v.  Cholmeley,  1  Russ.  &  M.  418 ; 
1  CI.  &  Fin.  60;  Waldo  r.  Waldo,  12  Sim.  107;"Uoi-an  v.  Wiltshire,  3 
Swans.  699;  Wolf  v.  Hill,  1  Swans.  149,  n. 

^  Davies  v.  Wescomb,  2  Sim.  425. 

^  Binges  V.  Lamb,  IG  Ves.  174. 


410  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

this  court  would  expect  some  strong  purpose  of  family  con- 
venience, justifying  the  conversion,  if  it  is  likely  to  continue 
money."  ^  So  the  trustees  would  not  be  justified  in  selling, 
as  between  themselves  and  the  cestuis  que  trust,  to  gratify 
caprice,  or  to  promote  the  exclusive  interest  of  the  tenant  for 
life.  Particular  circumstances  might  happen  which  would  call 
for  an  immediate  sale,  as  an  extremely  advantageous  offer, 
or  a  prospect  of  great  depreciation  or  deterioration :  but 
generally  the  trustees  ought  not  to  convert  the  estate  into 
money  without  having  another  specific  purchase  in  view ;  and 
then  not  for  the  purpose  of  conversion,  but  in  the  honest 
exercise  of  their  discretion  for  the  benefit  of  all  parties  claim- 
ing under  the  settlement.^  The  power  of  investing  the  pro- 
ceeds in  some  security,  in  the  mean  time,  was  not  intended 
to  authorize  the  continuance  of  the  property  in  money,  but 
only  to  meet  some  contingency,  as  where  the  trustees  were 
disappointed  in  a  contemplated  purchase,  or  there  was  some 
necessary  delay  in  completing  the  title  to  it.  The  sale  will  be 
void,  if  the  trustees  appear  to  have  been  influenced  by  private 
or  selfish  purposes.^ 

§  778.  Where  trusteesiiave  a  power  of  sale  at  the  written 
request  and  direction  of  another  party,  they  cannot  obtain  a 
decree  for  specific  performance  of  a  sale  contracted  by  them 
without  showing  such  writing  ;  nor  will  proof  of  a  part  per- 
formance of  the  contract  by  the  parties,  so  as  to  take  the  sale 
out  of  the  statute  of  frauds,  be  suflficient."* 

I'Mortlock  f.  Buller,  10  Ves.  308;  Mahon  v.  Stanhope,  cited  2  Sugd, 
Pow.  512. 

2  Cowgill  V.  Oxmantown,  3  Y.  &  Col.  369 ;  Watts  v.  Girdlestone,  6 
Beav.  188 ;  Marshall  v.  Sladden,  4  De  G.  &  Sm.  468 ;  Wormley  v.  Worm- 
ley,  1  Brock.  330;  8  Wheat.  421. 

=>  Ibid. 

*  Adams  V.  Broke,  1  Y.  &  Col.  Ch.  627 ;  Sykes  v.  Sheard,  33  Beav.  114 ; 
Blackwood  v.  Burrowes,  2  Con.  &  Law.  459  ;  Phillips  v.  Edwards,  33  Beav. 
440. 


§§  777-779.]     HOW  the  power  may  be  exercised.  411 

§  779.  A  trustee  cannot  delegate  the  trust  or  power  of  sale 
to  a  third  person ;  ^  especially  if  it  is  a  naked  power,  coupled 
with  no  interest.^  A  sale  executed  by  such  delegated  agent 
is  void.^  Nor  can  one  trustee  delegate  his  power  to  a  cotrus- 
tee.'* But  such  trustees  for  sale  may  employ  a  solicitor  or 
agent,  according  to  the  usage  of  business,  if  they  use  proper 
prudence  ;  ^  the  agent's  authority  should  be  in  writing,  in  order 
to  make  a  binding  contract,^  or  it  should  be  ratified  in  writ- 
ing," and  all  the  trustees  should  join  in  the  appointment  or 
ratification.^  The  proper  proceeding  is  for  the  trustees  to 
keep  the  business  in  their  own  hands  ;  to  employ  agents,  if 
necessary,  to  negotiate  the  details  of  the  sale,  subject  to  the 
approval  of  the  trustees ;  and  the  deeds  should  be  executed 
by  them,  and  not  by  attorney.^  If  the  donee  of  the  power  is 
a  married  woman,  her  husband  need  not  join  in  the  deed.^*^ 
If,  however,  the  fee  is  in  the  trustees,  so  that  they  have  an 
estate  coupled  with  a  power,  they  may  act  by  attorney  duly 
appointed  in  writing.^^  And  it  has  been  said  that  trustees 
for  creditors  may  convey  by  attorney. ^^      A  public  officer  can- 

^  Hardwick  ».  Mynd,  1  Anst.  109 ;  Newton  v.  Bronson,  3  Kern.  587 ; 
Hawley  i".  James,  5  Paige,  487. 

*  Black  V.  Erwin,  Harp.  L.  411. 

^  Pearson  v.  Jamison,  1  McLean,  197. 

*  Berger  v.  Duff,  4  John.  Ch.  368. 

6  Ex  pai-te  Belchier,  Amb.  218;  Ord  v.  Noel,  5  ]\Iad.  498;  Rossiter  v. 
Trafalgar  Life  Ass.  Co.  27  Beav.  377 ;  Sinclair  i'.  Jackson,  8  Cow.  582 ; 
Hawley  v.  James,  5  Paige,  487;  Gillespie  v.  Smitb,  29  111.  473. 

6  Mortlock  V.  BuUer,  10  Ves.  311. 

'  Newton  v.  Bronson,  3  Kern.  587. 

^  Mortlock  V.  BuUer,  10  Ves.  311 ;  Sinclair  v.  Jackson,  8  Cow.  582. 

®  Hawley  v.  James,  5  Paige,  487  ;  Cranston  v.  Crane,  97  Mass.  459 ; 
Gillespie  v.  Smith,  29  111.  473. 

"*  Cranston  v.  Crane,  97  Mass.  459. 

"  May's  Heirs  t'.  Frazer,  4  Lit.  391 ;  Telford  v.  Barney,  1  lo.  591. 
'-  Blight  V.  Schenck,  10  Barr,  28.">.  The  power  of  trustees,  executors, 
and  others,  acting  in  a  fiduciary  capacity,  to  contract  and  execute  their 
powers  by  attorney  is  regulated  by  statute  in  some  of  the  States.  The 
reader  will  examine  the  statutes  of  his  own  State.  Johns  v.  Sergeant,  45 
Miss.  332. 


412  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

not,  however,  be  appointed  to  convey  in  the  absence,  or  upon 
the  death  of  the  trustee.^ 

§  780.  In  the  al)sence  of  express  directions  in  the  power, 
trustees  may  sell  at  public  auction  or  private  sale,  as  circum- 
stances may  render  it  most  for  the  advantage  of  the  trust 
estate.^  Even  when  assignees  for  creditors  were  required 
to  sell  at  public  auction,  it  was  held  that,  after  an  ineffectual 
attempt  to  sell  at  auction,  they  might  sell  by  private  contract.^ 
If  the  power  directs  a  sale  at  public  auction,  it  must  be  fol- 
lowed;^ but  where  trustees,  directed  to  sell  at  auction,  were 
not  able  to  effect  a  sale  after  unusual  efforts,  it  was  held  that 
a  private  sale,  made  in  good  faith,  though  for  less  than  a  pub- 
lic offer,  was  valid."  And  it  has  been  held,  that  a  power  to  sell 
at  auction  or  otherwise,  in  whole  or  in  parcels,  on  giving  three 
weeks'  notice,  authorized  a  private  sale  without  any  notice.^ 
Under  a  power  to  sell  at  auction,  and  where  there  is  an  adver- 
tisement and  an  auction,  the  highest  bid,  sent  by  letter  and 
accepted,  is  valid.'  And  the  trustees  may  waive  a  bid  and 
a  sale,  and  resell  the  property  at  another  time,  upon  a  new 
notice.^     If  a  bid  is  made  under  a  misapprehension,  it  may  be 

'  Miller  v.  Evans,  35  Mo.  45. 

*  Ex  parte  Diinman,  2  Rose,  66 ;  Ex  parte  Hurley,  1  D.  &  Ch.  631  ;  Ex 
jmrte  Ladbroke,  1  Mont.  &  A.  381 ;  Ex  parte  Goding,  1  D.  &  Ch.  323 ; 
Davey  v.  Durant,  1  De  G.  &  J.  535 ;  Huger  v.  Huger,  9  Rich.  Eq.  217 ; 
Harper  v.  Hayes,  2  Gif.  210 ;  2  De  G.  &  J.  542.  In  Pennsylvania,  a  private 
sale,  under  a  power,  was  held  void.  McCreery  v.  Hamlin,  7  Barr,  87  ; 
Ellet  V.  Paxson,  2  W.  &  S.  418.  But  it  is  now  altered  by  statute.  See 
Ashhurst  v.  Ashhurst,  13  Ala.  781;  Burr  v.  McEwen,  Bald.  C.  C.  154; 
Mattox  V.  Eberhart,  38  Ga.  581 ;  Crane  v.  Reeder,  22  Mich.  339. 

3  JNIathers  v.  Prestman,  9  Sim.  352. 
■•  Greenleaf  v.  Queen,  1  Pet.  145. 

*  Tyson  v.  Mickle,  2  Gill,  383;  Gibbs  v.  Cunningham,  1  Md.  Ch.  44; 
Gibson's  Case,  1  Bland,  138 ;  Beebe  v.  De  Baun,  3  Eng.  (Ark.)  567. 

®  Minuse  v.  Cox,  5  John.  Ch.  441. 

7  Tyree  v.  Williams,  3  Bibb,  367. 

^  Dover  v.  Kennedy,  38  Mo.  469.  But  he  ought  not  to  sell  on  the  same 
day.  He  should  appoint  another  day,  and  give  new  notices.  Judge  v. 
Booze,  47  Mo.  544.     See  Barnard  v.  Duncan,  38  Mo.  170. 


§§  779-782.]     HOW  the  power  may  be  exercised.  413 

waived,  and  the  land  sold  at  a  lower  bid.^  So  if  the  accept- 
ance of  a  bid  Avould  prejudice  or  defeat  the  purposes  of  tlic 
sale,  it  should  be  refused.^ 

§  781.  A  sale  at  auction  is  always  the  safest,  as  it  is  the 
usual,  form  of  sale  ;  for  a  sale  at  a  regularly  advertised  and 
properly  conducted  auction  cannot  be  questioned,  and  no  ques- 
tion can  be  raised  as  to  the  adequacy  of  the  pricc,^  especially 
if  the  property  is  in  the  hands  of  a  bona  fide  purchaser.*  But 
in  case  of  a  private  sale,  if  the  price  procured  is  less  than  the 
estimated  value,  the  trustee  incurs  great  responsibility  and 
some  danger.^  Courts  scrutinize  such  sales  with  great  jeal- 
ousy, and  if  there  is  any  fraud,  oppression,  unfairness,  or 
irregularity,  or  even  a  suspicion  of  them,  the  sale  will  be  set 
a  side. *^ 

§  782.  If  the  trustees  sell  at  auction,  they  must  see  that 
proper  advertisements  are  made  and  due  notice  given  to  all 
parties ; "'  and  the  court  will  enjoin  the  sale,  if  there  is  any 
want  of  diligence  in  this  respect.^  No  particular  form  of 
notice  or  advertisement  is  required  ;  it  must  state  the  time 
and  place  of  the  sale  correctly,^  and  be  sufficient  to  identify 
the  land,  and  to  invite  competition.^*'  If  by  the  power  or 
license  of  sale  a  notice  is  to  be  given  at  a  particular  place, 

'  Waterman  V.  Spaulding,  51  111.  425. 
'  Gray  v.  Viers,  33  Md.  18. 
^  Waterman  v.  Spaul(lin;jj,  51  111.  425. 
*  Shine  v.  Hill,  23  lo.  2G4. 

5  Ord  V.  Noel,  5  Mad.  440;  Taylor  v.  Tabrnm,  0  Sim.  281 ;  Connolly  v. 
Parsons,  3  Ves.  628,  n. ;  IMortlock  v.  Bnller,  10  Ves.  2D2,  309 ;  Johnson  r. 
Dorsey,  7  Gill,  2G9 ;  Hintzc  v.  Stingel,  1  Md.  Ch.  Dec.  283. 

6  Penny  v.  Cook,  19  lo.  538. 

7  Anon.  6  Mad.  10;  Blennerhassett  v.  Day,  2  B.  &  B.  133. 

8  Ibid.  Ante,  §§  G02  (i-()02  u  ;  Mattliie  v.  Edwards,  2  Coll.  465  ;  11  Jur. 
504;  Jenkins  v.  Jones,  2  (iif.  91);  Pechel  v.  Fowler,  2  Anst.  519,  has  not 
been  followed. 

'  Stephenson  v.  January,  49  Mo.  465, 
'"  Newman  v.  Jackson,  12  Wheat.  570;  Reeside  t'.  Peter,  33  ]Md.  120. 


414  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

a  sale  upon  notice  given  at  another  place  will  be  void.^  If 
the  manner  of  the  sale  is  in  express  terms  left  to  the  discre- 
tion of  the  trustee,  no  advertisement  is  necessary :  -  but  if 
the  power  or  a  statute  requires  a  certain  number  of  days' 
notice  before  the  sale,  the  advertisement  must  be  made  every 
day  ;  ^  and  if  a  certain  number  of  weeks  are  required,  the 
advertisement  must  be  made  that  number  of  weeks  succes- 
sively. The  trustees  may  adjourn  a  duly  advertised  sale  from 
time  to  time,  and  the  notice  of  the  adjournments  need  not  be 
as  formal  as  the  first  notices  appointing  the  time  of 'sale.*  If 
notice  is  required  by  the  power,  those  persons  relying  upon  the 
validity  of  the  sale  must  show  that  the  power  was  complied 
with  ;  ^  but  a  clerical  mistake  in  the  statement  of  the  notice 
in  the  deed  will  not  vitiate  the  sale,  if  the  proper  notice  was 
in  fact  given.^  Chancellor  Kent  was  of  opinion,  that  want 
of  notice  would  not  affect  the  title,  but  that  the  trustee  would 
be  personally  responsible  ;  and  so  it  is  said  that  a  purchaser 
cannot  raise  this  objection  to  avoid  fulfilling  his  contract.'^ 
Whatever  may  be  the  rule  as  to  notice  of  sales  under  a  powder 
in  wills,  it  is  certain  that  trustees,  executors,  and  guardians, 
who  sell  under  statute  powers,  and  under  decrees  and  licenses 
of  the  courts  in  which  they  are  administering  estates,  must 
strictly  comply  with  all  the  statutes  as  to  notice,  oath,  and 
bonds,  or  their  acts  will  be  void  ;  and  a  purchaser  is  not  com- 

'  Sears  i'.  Livermore,  17  lo.  297. 

2  McDermot  v.  Lorillard,  1  Edw.  Ch.  273. 

3  Stine  I'.  AVilkson,  10  Mo.  75.  A  publication  in  a  weekly  newspaper 
operates  as  a  constructive  daily  notice  until  the  next  issue.  Campbell  v. 
Tagge,  30  lo.  305 ;  Sears  v.  Livermcre,  17  lo.  300 ;  Letier  v.  Armstrong, 
4  lo.  482. 

^  Richards  v.  Holmes,  18  How.  143;  Burnet  v.  Brundage,  8  Minn.  432. 
Otherwise  in  Illinois.  Thornton  v.  Boyden,  31  111.  200;  Griffin  v.  Marine 
Co.  52  111.  130. 

*  Gibson  v.  Jones,  5  Leigh,  370;  Hahn  v.  Pindell,  1  Bush,  358. 

®  O'Neil  V.  Vanderburg,  25  lo.  104. 

''  Minuse  v.  Cox,  5  John,  Ch.  447;  Greenleaf  t;.  Queen,  1  Pet.  145 f 
Beebe  v.  De  Baun,  3  Eng.  567 ;  Johnson  ».  Dorsey,  7  Gill,  269 ;  Gibbs  v. 
Cunningham,  1  Md.  Ch.  Dec.  44;  Cassell  v.  Ross,  33  111.  244. 


§§  782,  783.]     HOW  the  power  may  be  exercised.  415 

pelled  to  complete  the  contract,  if  there  is  any  irregularity  in 
the  proceedings.  A  stranger  or  wrong-doer  cannot  object  to 
any  irregularity  in  the  proceedings  of  the  sale  ;  ^  nor  can  such 
sale  be  attacked  collaterally  ;  ^  nor  can  a  purchaser  or  other 
person  make  any  objection  to  the  completion  of  the  contract, 
where  the  cestuis  que  trust,  being  competent  to  act  for  them- 
selves, waive  all  irregularities.^  In  the  first  instance,  there 
is  always  a  general  presumption  in  favor  of  meritorious  par- 
ties, as  purchasers  for  value,  that  the  power  has  been  properly 
exercised.* 

§  783.  A  power  of  sale,  like  all  other  powers,  can  be  exer- 
cised only  in  the  mode,  and  upon  the  exact  conditions,  terms, 
and  occasions  prescribed  in  the  instrument  of  trust ;  ^  as,  where 
the  power  is  to  sell  for  a  certain  price,  the  trustee  cannot  sell 
for  less,*^  and  where  the  direction  is  to  sell  for  cash,  a  sale  upon 
credit  is  bad.'''  Whether  a  trustee  can  sell  on  credit  or  not  where 
no  directions  are  given,  is  perhaps  an  open  question,^  where  a 
trust  is  to  sell  after  the  death  of  the  tenant  for  life,*^  or  when 

'  Hilleglass  v.  Hilleglass,  5  Barr,  97;  Gary  v.  Colgin,  11  Ala.  514; 
Wightinan  v.  Doe,  24  Miss.  675;  Herbert  v.  Hanrick,  16  Ala.  518  ;  Larco 
V.  Casaneuava,  30  Cal.  560. 

2  Reed  v.  Mullins,  48  Mo.  344 ;  Williams  v.  Munroe,  07  N.  C.  164. 

8  Greenleaf  v.  Queen,  1  Pet.  145;  Sehenck  v.  Ellenwood,  3  Edw.  Ch. 
175. 

4  Marshall  v.  Stephens,  8  Humph.  159. 

6  Wright  V.  Wakeford,  17  Ves.  454 ;  Rodman  v.  Munson,  13  Barb.  63  ; 
Sweigart  v.  Berk,  8  S.  &  R.  304;  Li  re  Vandervoot,  1  Redfield,  N.  Y.  Sur. 
270;  Alley  v.  Lawrence,  12  Gray,  373;  Hunt  v.  Townshend,  31  ]Md.  Soli; 
Booraem  v.  Wells,  4  Green,  Ch.  87 ;  Bakewell  v.  Ogden,  2  Bush,  2Go  ; 
Mills  V.  Taylor,  30  Tex.  7  ;  Young  v.  Benthuysen,  30  Tex.  702  ;  Palmer  v. 
Williams,  24  Mich.  328. 

6  Caldwell  v.  Brown,  36  111.  103. 

7  Waterman  v.  Spaulding,  51  111.  425;  Cassell  v.  Ross,  33  111.  244; 
Palmer  v.  Williams,  24  Mich.  ;)2S. 

8  Carnes  t'.  Polk,  4  Coldw.  87;  Drusadow  v.  Wilde,  63  Penn.  St.  170. 

^  Blacklow  V.  Laws,  2  Hare,  40 ;  Stycr  v.  Freas,  15  Penn.  St.  330 ; 
Davis  V.  Howcote,  1  Dev.  &  Bat.  Ch.  460 ;  Jackson  v.  Lignon,  3  Leigh, 
161. 


416  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

the  cestui  que  trust  arrives  at  his  majority ,i  a  sale  before  the 
time  is  bad,  although  made  by  decree  of  coiirt,^  or  act  of  the 
legislature.^  But  the  execution  of  the  power  of  sale  may  be 
accelerated  by  the  tenant  for  life  surrendering  the  life-estate  to 
the  remainder-man,  if  capable  of  acting  ;  *  or  by  joining  with 
the  trustees  in  effecting  the  conveyance  ;  for,  the  postponement 
of  the  sale  being  for  the  benefit  of  the  tenant  for  life,  such  ten- 
ant may,  by  executing  the  deed  of  conveyance,  waive  sucli  bene- 
fit.^ If,  however,  the  postponement  of  the  sale  is  not  for  the 
benefit  of  the  tenant  for  life,  but  for  the  benefit  of  the  remain- 
der-men, as  by  preserving  real  security  for  them,  or  with  the 
expectation  of  securing  a  rise  in  value  for  them,  the  sale  of  the 
estate  cannot  be  accelerated,  even  with  the  concurrence  of 
the  tenant  for  life.^  Where  the  direction  was  to  sell  as  soon  as 
convenient,  and  within  five  years,  it  was  held  to  be  monitory, 
and  a  sale  after  five  years  was  held  good.'^  Where  trustees 
were  authorized  to  postpone  sales,  but  not  beyond  ten  years,  it 
was  held  that,  on  proof  that  a  sale  within  that  time  would  have 
been  mischievous  to  the  estate,  the  trustees  might  be  ordered 
after  that  time  to  sell.^  A  power  to  sell,  if  the  income  of  the 
real  and  personal  estate  is  not  sufficient  to  support  the  testator's 
wife  comfortably,  can  only  be  exercised  in  that  event.^  A  power 
to  sell,  after  redeeming  from  a  sale  for  taxes,  cannot  be  exer- 
cised before  such  redemption ;  ^^  and  a  power  to  sell,  to  dis- 

>  Loomis  V.  McClintock,  10  Watts,  274. 

*  Blacklow  V.  Laws,  2  Hare,  40. 

2  Erviu's  App.  16  Penn.  St.  256. 

^  Truell  V.  Tysson,  21  Beav.  439.  But  if  a  widow  is  made  tenant  for 
life,  and  waives  the  provisions  of  the  will  and  claims  dower,  the  sale  cannot 
be  accelerated.     Jackson  v.  Lignon,  3  Leigh,  161. 

s  Styer  v.  Freas,  15  Penn.  St.  339;  Gast  v.  Porter,  13  Penn.  St.  533. 
Davis  V.  Howcote,  1  Dev.  &  Bat.  Ch.  460,  is  the  other  way. 

«  Gast  V.  Porter,  13  Penn.  St.  535;  Pearce  v.  Gardner,  10  Hare,  290; 
Cuffu.  Hall,  19  Jur.  973. 

'  Pearce  v.  Gardner,  10  Hare,  287;  Smith  v.  Kinney,  33  Tex.  283. 

«  CufiFv.  Hall,  1  Jur.  (n.  s.)  973. 

^  Minot  V.  Prescott,  14  Mass.  495. 
'"  Devinney  v.  Reynolds,  1  W.  &  S,  332. 


§§  782-78-1.]       WHERE    A    CONSENT   IS   REQUIRED.  417 

cliarge  the  instalment  of  a  debt  then  due,  cannot  be  exercised 
by  selling  to  pay  that  instalment,  and  also  another  not  due.^ 
"Where  the  power  is  to  sell  before  a  certain  period  expires,  a 
sale  within  the  period  is  good,  though  the  deed  is  dated  after- 
wards, and  the  actual  time  of  the  contract  of  sale  may  be  shown 
by  parol.2  Where  the  trustee  may  exercise  his  own  discretion 
as  to  the  time  and  manner  of  sale,  his  discretion  cannot  gener- 
ally be  questioned,  except  in  the  absence  of  good  faith."^  But 
even  a  discretionary  power  cannot  be  exercised  after  all  the 
purposes  of  the  power  and  of  the  trust  have  been  satisfied  ;  as, 
where  all  the  persons  for  whom  the  trust  was  created  are  dead, 
and  the  property  in  specie  goes  to  the  remainder-men.'^  But 
if  any  of  the  trusts  remain  to  be  executed,  the  trustees  may 
exercise  the  power  of  sale.^  So  a  power  to  executors  to  sell, 
virtute  officii,  ceases  when  all  the  purposes  of  the  power  are 
accomplished  ;  as  when  the  estate  is  fully  administered,  or  the 
debts  are  all  paid,  or  barred  by  lapse  of  time,  or  the  purpose  of 
the  power  has  become  impossible  of  accomplishment.^  If  a 
trustee  sells  after  the  debt  is  paid,  for  the  payment  of  which  the 
power  of  sale  was  given  to  him,  or  after  payment  is  tendered, 
the  purchaser  will  take  no  title  ;  "*  but  if  the  sale  is  simply  for 
more  than  there  is  due  on  the  debt,  the  purchaser  will  take  a 
good  title.^  The  court  may  enjoin  a  sale  when  the  purposes  of 
the  trust  are  satisfied.^ 

§  784.  If  the  sale  is  directed  to  be  made  with  the  consent  of 
the  tenant  for  life,  or  any  other  person,  such  consent  is  indis- 

'  Ormsb)'  v.  Tarascon,  3  Lit.  411.  *  Harlan  v.  Brown,  2  Gill,  475. 

'  Bunner  v.  Storm,  1  Sand.  Ch.  357;  Champlin  v.  Champlin,  3  Edw.  Ch. 
571 ;  7  Hill,  245 ;  Greer  v.  McBeth,  12  Rich.  Eq.  254. 

*  Slocum  V.  Slocum,  4  Edw.  Ch.  613. 

*  Cresson  v.  Ferree,  70  Penn.  St.  446. 

'  Jackson  r.  Jansen,  6  John.  73;  Sharpsteen  v.  Tillon,  3  Cow.  651; 
Ward  V.  Barrows,  22  Ohio,  241 ;  Stroiighill  v.  Anstey,  1  l)e  G.,  M.  &  G. 
635.  7  Welch  v.  Greenalge,  2  Heisk.  210. 

'  Waterman  v.  Spalding,  51  111.  451. 

»  Neely  v.  Steele,  1  Barb.  Eq.  240;  Murdock  v.  Johnson,  7  Coldw.  605. 

VOL.  II.  27 


418  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

pensable  to  a  valid  exercise  of  the  power.^  Where  the  sale  is 
to  be  made  with  the  consent  of  the  tenant  for  life,  his  consent 
to  a  decree  of  sale  is  sufficient ;  ^  and  if  the  tenant  for  life  sells 
and  conveys  his  life-estate  to  a  third  person,  he  must  consent 
to  a  sale  by  the  trustees.^  If  the  tenant  for  life  becomes  bank- 
rupt or  insolvent,  his  power  to  consent  or  dissent  is  not  taken 
away ;  but  his  assignees  must  join  with  him  in  assenting  to  the 
sale.'^  Where  the  trust  for  sale  is  upon  condition  that  the 
grantor  or  donor  shall  consent  in  writing  to  the  sale,  no  sale 
can  be  made  without  such  consent,  and  the  death  of  the  grantor 
will  destroy  the  power.^  Where  there  was  a  trust  for  sale,  but 
no  sale  was  to  be  made  without  the  consent  "  of  my  sons  and 
daughters,"  and  a  daughter  had  died,  leaving  a  husband  abso- 
lutely entitled  to  her  share,  and  all  the  surviving  children  and 
the  husband  consented  to  the  sale,  it  was  held  to  be  too  doubt- 
ful a  title  to  force  upon  a  purchaser.^  But  where  there  was  a 
power  to  sell  with  the  consent  of  a  majority  of  the  testator's  chil- 
dren, the  consent  of  the  majority  of  children  liv'mg  at  the  time 
of  the  sale  was  held  sufficient,  although  one  had  died ; "  and 
the  same  doctrine  was  held  where  all  had  died.^  Where 
a  testator  gave  his  "  executor  "  power  to  sell  with  the  consent 

1  Mortlock  V.  Buller,  10  Ves.  308;  Bateman  v.  Davis,  3  Mad.  98; 
Wright  V.  Wakeford,  17  Ves.  454;  Rickett's  Trusts,  1  John.  &  H.  70. 

2  Tyson  v.  Mickle,  3  Gill,  376. 

^  Warburton  v.  Farn,  16  Sim.  625;  Vincent  v.  Ennys,  3  Vin.  Ab.  433; 
Ren  V.  Bulkeley,  Doug.  292;  Long  v,  Rankin,  2  Sugd.  Pow.  539;  Tyrrell 
V.  Marsh,  3  Bing.  31 ;  Davies  v.  Bush,  McClel.  &  Y.  58.  But  see  Alexander 
V.  Mills,  39  L.  J.  Ch.  407 ;  18  W.  R.  635 ;  22  L.  T.  (n.  s.)  396. 

*  Holdsworth  v.  Goose,  29  Beav.  Ill;  Eisdell  v.  Hammersley,  31  Beav. 
255;  Jones  v.  Winwood,  10  Sim.  150;  3  M.  &  W,  653,  overruling  Badhain 
V.  Mee,  1  My.  &  K.  32;  1  Sugd.  Pow.  80;  Alexander  v.  Mills,  39  L.  J. 
Ch.  407  ;  18  W.  R.  635 ;  22  L.  T.  (n.  s.)  396. 

5  Kissam  v.  Dierkes,  49  N.  Y.  602. 

®  Sykes  v.  Sheard,  2  De  G.,  J.  &  Sm.  6;  Co.  Lit.  113  a;  Dame  v.  Annas, 
Dyer,  219  ;  Atwaters  v.  Burt,  2  Cro.  Eliz.  856  ;  Mansell  v.  Mansell,  VVilm. 
36 ;  Green  v.  Green,  2  Jo.  &  Lat.  529 ;  Sugd.  Pow.  126,  128,  252. 

^  Sohier  v.  Williams,  1  Curtis,  479. 

«  Leeds  v.  Wakefield,  10  Gray,  514. 


§§  784,  785.]       WHERE   THE   POWER   IS   CONDITIONAL.  419 

of  his  wife,  and  then  appointed  his  wife  executrix,  it  was  held 
that  she  could  sell  without  any  concurrence  from  anybody.^  If 
the  power  to  sell  depends  upon  the  consent  of  any  person  or 
persons,  their  death,  or  the  death  of  one  of  them,  generally 
defeats  the  power.^  But  where  the  power  depends  upon  the 
consent  of  persons  filling  a  particular  office  or  bearing  a  par- 
ticular character,  the  consent  of  such  persons  will  be  sufficient, 
though  they  may  have  been  appointed  in  the  place  of  those  who 
had  died  or  resigned. ^  The  persons  whose  consent  is  necessary 
will  not  be  allowed  to  witlihold  it  for  improper  and  selfish  pur- 
poses.* Where  the  required  consent  must  be  in  writing,  any 
writing  signed  by  the  party  implying  his  consent,  will  be  suffi- 
cient, whether  it  is  a  deed,  mortgage,  or  other  paper,  by  which 
his  consent  is  given  or  implied.^ 

§  785.  Upon  the  same  principles,  where  the  power  is  to  be 
exercised  only  upon  some  condition  or  contingent  event,  such 
as  the  deficiency  of  another  estate  to  pay  certain  charges,^  or 
to  pay  debts,  or  upon  the  purchase  and  settlement  of  another 
estate  to  the  same  uses,^  the  power  cannot  be  executed  except 
upon  the  performance  of  the  conditions.^  If  it  is  a  power  to 
sell  to  pay  debts  upon  a  "  deficiency  of  personal  assets,"  there 
must  be  a  deficiency  to  justify  the  exercise  of  the  power.^ 
Such  conditions  are  precedent  to  the  right  to  exercise  the 
power,  and  may  be  traversed ;  therefore  the  right  to  exercise 

1  Williams  v.  Williams,  1  Diiv.  Ky.  221 ;  Griswold  v.  Perry,  7  Lansing, 
98. 

-  Svkes  V.  Sheard,  2  De  G.,  J.  &  Sm.  G;  Alley  v.  Lawrence,  12  Gray,  373. 

'  Barber  v.  Gary,  1  Kern.  397. 

'  Norcum  v.  D'Oench,  2  Ben.  (Mo.)  98. 

*  Montefiore  v.  Browne,  7  H.  L.  Ca.  241. 

«  Dike  V.  Ricks,  Cro.  Car.  335;  Culpepper  v.  Asliton,  2  Cli.  Ca.  221; 
2  Sugd.  Pow.  497 ;  2  Sugd.  V.  &  P.  48. 

'  Doe  V.  Martin,  4  T.  &  R.  39 ;  Co.\  v.  Chamberlain,  4  Ves.  031 ;  Bur- 
goigne  V.  Fox,  1  Atk.  575 ;  Ilouj^liani  v.  Sandys,  2  Sim.  95,  145. 

«  2  Sugd.  Pow.  497. 

*  Roseboom  v.  Mosher,  2  Denio,  Gl,  per  Bronson,  Ch.  J.;  Graham  r. 
Little,  5  Ired.  Eq.  407 ;  Bloodgood  v.  Bruen,  2  Brad.  Sur.  8. 


420  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

the  power  must  be  shown. ^  If  the  executors  have  power  to 
sell,  if  "  in  their  opinion  a  sale  is  necessary  to  pay  debts  and 
legacies,"  the  sale  is  conclusive  proof  of  their  opinion  that  it 
was  necessary,  if  they  act  in  good  faith.^  So,  if  the  personal 
estate  is  insufficient,  the  executors  with  such  powers  must  sell, 
whether  they  deem  it  expedient  or  not.^  If  the  debts  are  all 
paid  or  barred,  the  trustee  will  no  longer  be  justified  in  exer- 
cising the  power  of  sale."^  Where  a  sale,  under  such  a  power, 
is  made  after  a  great  length  of  time,  and  the  heirs  and  devisees 
are  in  the  occupation  of  the  land,  a  purchaser  will  be  held  to 
inquire  into  the  necessity  of  the  sale,  and  to  see  to  the  applica- 
tion of  the  purchase-money.^  There  is  a  material  difference 
between  conditions  precedent  and  subsequent  annexed  to 
powers.  If  it  is  a  condition  precedent,  no  sale  can  be  sus- 
tained under  the  power  unless  the  condition  is  performed. 
Thus  in  the  case  of  a  deed  with  power  of  sale  for  the  payment 
of  any  balance  that  miglit  be  due,  the  trustees  to  make  oath 
before  a  justice  of  the  peace,  or,  in  case  of  the  death  of  one, 
the  survivor  to  make  oath  as  to  the  amount  due,  the  provision 
was  held  to  be  a  condition  precedent,  to  be  strictly  complied 
with,  and  the  oath  of  one,  the  other  being  alive,  was  held  to  be 

1  Ibid. ;  Minot  v.  Prescott,  14  Mass.  495  ;  Griswold  v.  Perry,  7  Lansing, 
103. 

^  Roseboom  v.  Mosher,  2  Denio,  61 ;  Rendlesham  v.  Meux,  14  Sim. 
249.  See  Penniman  v.  Sanderson,  13  Allen,  193.  It  is  said  in  Silverthorn 
V.  McKinster,  2  Penn.  St.  67,  and  Coleman  v.  McKinney,  3  J.  J.  Mai-sh. 
251,  that  a  deficiency  of  the  personal  estate  need  not  be  shown,  and  that  the 
conveyance  under  the  power  raises  the  presumption  that  it  existed.  The 
cases  hardly  seem  consistent  with  principle.  But  see  Hamilton  v.  Crosby, 
32  Conn.  342. 

3  Coleman  v.  McKinney,  3  J.  J.  Marsh.  246. 

*  Jackson  v.  Jansen,  6  John.  73 ;  Sharpsteen  v.  Tillon,  3  Cow.  651  ; 
Ward  V.  Barrows,  22  Ohio,  241 ;  Stroughill  v.  Anstey,  1  De  G.,  M.  &  G. 
635 ;  Penny  v.  Cook,  19  lo.  538. 

*  Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  635.  This  would  seem  to  be 
the  reasonable  rule ;  but  in  Sabin  v.  Heape,  27  Beav.  553,  a  sale  after 
twenty-seven  years  was  held  not  to  impose  such  precautious  upon  the  pur- 
chaser. 


§§  785,  786.]       WHERE   THE   POWER   IS    CONDITIONAL.  421 

insufficient  to  justify  a  sale.^  So  if  the  deficiency  of  the  per- 
sonal estate  or  any  other  property  is  the  condition  upon  which 
the  power  of  sale  is  to  be  exercised,  it  is  a  condition  precedent 
upon  which  the  power  is  to  arise  ;  and  the  purchaser  must 
ascertain  the  right  to  exercise  it.^  But  where  the  condition  is 
subsequent,  the  power  of  sale  will  attach  independently  of  the 
performance  of  the  condition.  As,  where  the  purchase-money 
is  to  be  reinvested,  it  being  a  condition  subsequent,  a  bona  fide 
purchaser  will  not  be  affected  by  its  non-performance,  if  the  trus- 
tees had  power  to  give  receipts  for  the  money.^ 

§  786.  Trustees  may  propose  any  reasonable  conditions  of 
sale  ;  "*  but  they  must  not  dampen  the  sale  by  clogging  it  with 
unnecessary  conditions  and  restrictions.^  If  they  do  any  act, 
or  make  any  declarations,  or  impose  any  conditions,  which  pre- 
vent competition  and  cause  a  sacrifice  of  the  property,  the  sale 
will  be  set  aside.^  They  may  do  all  reasonable  acts  which  are 
necessary  for  clearing  and  perfecting  the  title  and  completing 
the  sale.''  The  word  grant  was  formerly  supposed  to  imply  a 
covenant,  for  that  reason  it  was  left  out  of  trustees'  deeds,  and 
they  merely  bargained  and  sold ;  but  it  was  an  unnecessary 
caution.^  Still  they  are  not  justified  in  covenanting  against 
any  thing  but  their  own  acts  ;^  but  if  they  have  any  beneficial 

^  Mason  v.  Martin,  4  Md.  125. 

^  2  Siigd.  V.  &  P.  48 ;  Hill  on  Trustees,  178. 

'  Roper  u.  Ilalifiix,  Sugd.  Pow.  App.  No.  3;  Hill  on  Trustees,  178. 

*  Hobson  V.  Bell,  2  Beav.  17. 

6  Downs  V.  Grazebrook,  3  Mer.  208 ;  Wilkins  v.  Frve,  2  Rose,  375 ;  1 
Mer.  268;  Rede  v.  Oakes,  10  Jur.  (n.  s.)  1246;  Falkner  v.  Equitable  Soc. 
4  Drew.  352  ;  Dance  v.  Goldingham,  L.  R.  8  Ch.  902. 

«  Goodwin  V.  Mix,  38  111.  115;  Barnard  v.  Duncan,  38  Mo.  170. 

'  Forshaw  v.  Higginson,  8  De  G.,  M.  &  G.  827. 

«  Co.  Lit.  384  a,  note  1. 

•  White  V.  Foljambe,  11  Ves.  345 ;  Onslow  v.  Londcsborough,  10  Hare, 
74 ;  Worley  v.  Franipton,  5  Hare,  560  ;  Stephens  v.  Hotham,  1  Kay  &  J. 
671;  Page  v.  Broom,  3  Beav.  36;  Copper  Mining  Co.  v.  Beach,  13  Beav. 
478;  Hodges  v.  Blagrave,  18  Beav.  405;  Phillips  v.  Everai'd,  5  Sim.  102; 
Sugd.  V.  &  P.  61 ;  Barnard  v.  Duncan,  38  Mo.  170. 


422  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

interest  in  tlie  trust  estate  they  may  enter  into  full  covenants.^ 
If  the  purchaser  abandons  the  bargain,  and  forfeits  his  deposit, 
the  trustees  must  account  for  the  forfeit  money  to  the  cestui 
que  trust ;  ^  and  they  are  accountable  for  any  unnecessary  delay 
in  recovering  the  deposit  money  from  the  auctioneer.^ 

§  786  a.  So  trustees  for  sale  must  conform  to  their  powers  in 
other  respects.  If  they  are  authorized  by  the  power  to  sell  on 
credit,  they  may  sell  upon  such  credit  as  they  are  authorized 
to  give ;  but  if  the  power  is  silent  upon  the  subject  of  credit, 
they  cannot  sell  upon  a  credit.*  This  rests  upon  the  general 
principle,  that  trustees  are  not  authorized  to  invest  the  trust 
funds  in  promissory  notes,  nor  other  mere  personal  securities  ;  ^ 
nor  are  they  justified  in  converting  the  trust  property  into  mere 
personal  promises  of  anybody.^  Sales  must  generally  be  made 
for  some  particular  purposes.  If  they  are  made  for  the  purpose 
of  distributing  the  property,  the  trustee  cannot  make  the  dis- 
tribution until  he  has  obtained  the  money,  and  it  is  his  duty  not 
to  endanger  the  fund  by  leaving  it  upon  personal  security.  So 
if  the  sale  is  made  as  a  change  of  securities,  or  for  the  purpose 
of  investment  or  reinvestment,  there  can  be  no  excuse  for  leav- 
ing the  fund,  for  any  length  of  time,  dependent  upon  the  per- 
sonal responsibility  of  any  one,  especially  as  the  change  should 
not  be  made  until  he  has  his  new  investment  in  view.''  It  is 
laches  for  a  trustee  not  to  use  all  due  diligence  in  collecting  all 
debts  due  to  his  estate,  and  converting  them  into  money  ;  ^  and 

'  Staines  v.  Morris,  1  V.  &  B.  12 ;  Stephens  v.  Hotham,  1  K.  &  J. 
580. 

2  Campbell  v.  Johnston,  1  Sand.  Ch.  148. 
^  Edmonds  v.  Peake,  7  Beav.  239. 

*  Waldron  v.  McComb,  1  Hill,  111,  7  Hill,  335;  Ives  v.  Davenport,  3 
Hill,  373;  Swoyer's  App.  3  Barr,  377;  Hunt  v.  Fisher,  1  Harr.  &  Gill, 
88;  Waring  v.  Darnall,  10  Gill  &  John.  12G  ;  Davis's  App.  1-4  Penn.  St. 
372. 

*  Ante,  §  453  and  case  cited.  ^  Ibid. 
''  Ante,  §  466  and  cases  cited. 

®  Ante,  §  441  and  cases  cited. 


§§  786-787.]  WHO  may  purchase.  423 

it  is  greater  negligence  and  maladministration  of  the  trust,  to 
convert  substantial  and  tangible  property  into  personal  credits. 
This  does  not  prevent  a  trustee  from  making  proper  terms  of  the 
sale,  and  from  giving  a  proper  time  to  the  purchaser  to  exam- 
ine the  title  and  com|)lete  the  contract ;  but  the  trustee  ought 
not  to  part  with  the  title  before  he  has  received  the  purchase- 
money.  If,  however,  the  sale  is  made  for  a  change  of  invest- 
ment, the  trustee  may  take  a  mortgage  upon  the  property  sold, 
if  it  is  real  estate  ;  for  investments  in  mortgages  of  real  estate, 
in  the  absence  of  any  provision  in  the  instrument  of  trust  to 
the  contrary,  are  permitted  by  the  law.^  And  where  property 
was  sold  for  a  particular  purpose,  it  was  permitted  to  invest  the 
money  in  exchequer  bills,  awaiting  the  accomplishment  of  the 
purpose  ;  but  exchequer  bills  are  a  kind  of  government  security, 
and  are  not  a  mere  personal  credit.^  But  where  a  sale  is  for 
the  [)urpose  of  obtaining  money  for  a  particular  purpose,  the 
sale  must  be  for  money,  and  a  sale  on  credit  cannot  be  author- 
ized or  justified.^ 

§  787.  Where  the  trustees  have  the  legal  title  and  a  power  of 
sale,  they  alone  are  competent  to  contract  and  make  a  good  title 
to  the  purchaser.'^  So  if  they  take  a  mere  power  which  operates 
under  the  statute  of  uses,  by  revoking  the  old  uses  and  appoint- 
ing new  ones,  they  alone  can  make  a  good  title  to  the  pur- 
chaser.^ So  if  executors  have  a  power  of  sale  by  iui})lieation,'^ 
they  may  compel  the  purchaser  to  a  specific  performance  of  the 
contract  without  joining  the  cestiiis  que  trust  as  parties  to  the 

1  Swoyer's  App.  5  Barr,  277;  Waring  u.  Darnall,  10  Gill  &  John.  126. 

*  Matthews  v.  Brico,  6  Beav.  2.']9. 

'  Davis's  Appeal,  14  Penn.  St.  372.  A  sale  on  credit  is  said  to  be  the 
usual  and  authorized  course  in  North  Carolina.  Stone  v.  Hinton,  1  Ired.  Eij. 
15  ;  and  see  Carnes  v.  Polk,  4  Coldw.  187. 

*  Sowarsby  v.  Lacy,  4  Mad.  142;  Keon  v.  Magawly,  1  Dr.  &  AVar.  401. 
^  Titconib  v.  Currier,  4  Cush.  591 ;  Sugd.  Pow.  passim. 

«  Tylden  v.  Hyde,  2  S.  &  S.  238;  Forbes  v.  Peacock,  II  Sim.  152. 
But  the  heir  may  be  directed  to  join  in  the  conveyance.  Blatch  v.  Wilder, 
1  Atk.  420. 


424  TRUSTEES  FOR  SALE.         [CHAP.  XXV. 

suit/  and  courts  will  enforce  the  specific  performance  of  a 
proper  contract  of  sale,^  even  if  the  power  was  ended  before 
the  conveyance,  if  the  trustees  had  the  power  to  make  the  con- 
tract;^ but  any  contract  that  is  a  breach  of  the  trust  will  not 
be  enforced,  although  the  purchaser  was  without  fault ;  he  will 
be  left  to  his  remedy  at  law.*  If  the  trustees  sell  with  an  agree- 
ment that  the  purchaser  may  retain  a  private  debt  due  from 
them,  the  court  will  not  enforce  the  sale.^  Trustees  themselves 
cannot  purchase  the  estate  ;^  but  the  tenant  for  life  may,"  and 
trustees  of  other  estates  may  purchase.^  If  the  contract  turns 
out  to  be  one  of  great  hardship  against  the  trustees,  from  any 
misapprehension  of  all  the  circumstances  of  the  estate,  the 
court  will  not  enforce  its  specific  performance  against  them, 
but  will  leave  the  purchaser  to  his  suit  at  law.^  Neither  the 
trustee  nor  a  third  person  can  take  advantage  of  his  own  fraud 
to  defeat  the  sale :  the  cestui  que  trust  can  alone,  for  such  cause, 
avoid  the  act.^*^ 

'  Binks  V.  Rokely,  2  Mad.  227 ;  Keon  v.  Magawly,  1  Dr.  &  War.  401 ; 
Drayson  v.  Pocock,  4  Sim.  283 ;  In  re  London  Bridge,  18  Sim.  176  ;  Wake- 
man  V.  Rutland,  3  Ves.  233,  504;  8  Bro.  P.  C.  145  ;  Re  Williams's  Estate, 
5  De  G.  &  Sm.  515 ;  Cottrell  v.  Cottrell,  L.  R.  2  Eq.  330 ;  Lloyd  v. 
Griffiths,  3  Atk.  264;  Duffy  v.  Calvert,  6  Gill,  487. 

2  Mortlock  V.  Buller,  10  Ves.  315;  2  Sugd.  Pow.  511. 

3  Mortlock  V.  Buller,  10  Ves.  315. 

*  Ord  V.  Noel,  5  Mad.  438;  Wood  v.  Richardson,  4  Beav.  174;  Mort- 
lock V.  Buller,  10  Ves.  315  ;  Thompson  v.  Blackstone,  6  Beav.  470  ;  Dawes 
V.  Betts,  12  Jur.  709;  Johnston  v.  Eason,  3  Ired.  Eq.  334. 

"  Thompson  v.  Blackstone,  6  Beav.  470;  Miltenberger  v.  Morrison,  46 
Mo.  251. 

«  Ante,  §§  195-199. 

7  Howard  v.  Ducane,  T.  &  R.  81 ;  Diconson  v.  Talbot,  19  W.  B.  138 ; 
Miltenberger  v.  Morrison,  46  Mo.  251. 

8  Ibid. 

9  Wedgewood  v.  Adams,  6  Beav.  600 ;  8  Beav.  103. 
1°  Sarco  V.  Casaneuava,  30  Cal.  560. 


§§  787,  788.]  GENERAL  RULES.  425 


CHAPTER   XXYL 

RIGHTS  AND  DUTIES  OF  THIRD  PERSONS  IN  RELATION  TO  THE  TRUST 
ESTATE,  AND  THEIR  DUTY  OF  SEEING  TO  THE  APPLICATION  OF 
THE  PURCHASE-MONEY. 

§  788.  State  of  the  question. 
§  789.  The  different  powers  of  trustees. 

§  790.  General  rule  respecting  the  person  to  whom  monej'  or  property  must  be  passed. 
§  791.  How  the  ganeral  rule  may  be  controlled.     By  express  words. 
§  792.  By  powers  of  attorney. 
§  79.3.  By  implication. 

§  794.  Where  the  funds  are  to  be  held  and  invested  by  the  trustees. 
§  795.  Where  the  trust  is  to  pay  d-  bts  and  legacies. 
§  796.  Wliere  a  particular  debt  to  be  paid. 
§  797.  Discussion  of  the  rule. 
§  798.  Rule  in  the  United  States. 

§  799.  Where  trustees  have  the  right  to  vary  the  securities. 
§  800.  The  effect  of  collusion  or  fraud. 

§  801.  The  intention  of  the  testator  must  be  sought  at  the  time  the  will  was  made,  and 
is  not  afiected  by  a  change  of  circumstances. 
§§  802-805.  Who  has  power  to  sell  where  testator  makes  charges  upon  his  estate,  and 
gives  no  power  of  sale. 
§  806.  Trust  for  sale  a  joint  oflice,  receipts  must  be  joint. 
§  807.  Substituted  trustees  may  give  receipts. 
§  808.  Power  to  sign  receipts  after  a  breach  of  trust. 
§  809.  Rules  as  to  executors  in  respect  to  personal  estate. 
§  810.  Cannot  coUusively  dispose  of  personal  estate. 
§  811.  Where  the  executor  has  an  interest  as  legatee. 
§  812.  Rules  in  United  States  where  bonds  are  required. 
§  813.  Rules  as  to  agents. 

§  814.  Rule  as  to  those  standing  in  fiduciary  relations. 
§  815.  Within  what  time  courts  will  give  relief. 

§  788.  Immediately  connected  with  the  power  of  trustees  to 
sell  the  trust  property  and  receive  the  money,  is  the  inquiry, 
What  are  the  rights  and  duties  of  third  persons  in  dealing  with 
the  trustees  and  purchasing  the  property  ?  This  inquiry  em- 
braces two  heads:  (1.)  How  far  the  trustees  arc  authorized  to 
sell;  and  (2)  if  authorized  to  sell,  how  far  are  the  purchasers 


426  APPLICATION    OF    PURCHASE-MONEY.       [CHAP.  XXVI. 

required   to   see   that   the  purchase-money  is  api)lied  to  the 
purposes  of  the  trust  ? 

§  789.  There  is  a  wide  difference  between  the  gift  of  an 
estate  to  trustees  with  a  power  to  sell,  and  the  gift  of  a  power  ■ 
over  an  estate  as  a  power  to  sell  upon  a  certain  event  happening. 
Thus  if  a  testator  gives  an  estate  to  trustees  for  the  payment  of 
debts,  if  the  personal  assets  prove  insufficient,  the  trustees  should 
not  sell  the  estate  until  it  appears  that  the  personal  assets  are  in- 
sufficient, or  until  the  estate  is  wanted  for  the  purposes  for  which 
it  was  given.  But  a  purchaser  has  no  means  of  investigating  the 
accounts,  and  determining  the  amount  of  the  debts  due,  the 
amount  of  the  personal  assets,  or  the  disposition  that  has  been 
made  of  them.  All  that  he  can  do  is  to  inquire  of  the  executor, 
and  if  the  executor  and  trustee  are  the  same  person,  he  would 
make  no  progress  in  the  investigation  beyond  the  representations 
of  the  trustee.  In  this  case  the  legal  title  being  in  the  trustees, 
they  can  sell  and  transfer  it,  and  the  title  of  the  purchaser  can- 
not be  impeached,  if  he  has  acted  without  fraud  or  collusion, 
even  though  the  personal  assets  prove  sufficient  to  pay  the 
debts.i  But  if  the  estate  itself  is  not  given  to  the  trustees,  but 
a  mere  power  is  conferred  upon  them  to  sell  in  case  the  per- 
sonal assets  are  insufficient,  the  purchaser  must  act  at  his  peril, 
and  ascertain  whether  such  facts  exist  that  the  power  to  make 
the  sale  is  complete,  or  that  the  events  have  happened  which 
justify  the  exercise  of  the  power.^  In.  all  cases,  if  the  trust  is 
in  course  of  administration  in  court,  the  purchaser  must  con- 
sult the  proceedings  and  decrees  of  the  court.^  But  in  no  case 
is  the  purchaser  bound  to  ascertain  whether  the  trustees  are 

1  Culpepper  v.  Aston,  2  Ch.  Ca.  115;  Greetham  v.  Colton,  1  Jur.  (n.  s.) 
848;  Shaw  v.  Borrer,  1  Keen,  159;  Keane  v.  Robarts,  4  Mad.  356  ;  Co. 
Lit.  290  b.;  Butl.  n.  1-i. 

2  Culpepper  v.  Aston,  2  Ch,  Ca.  116,  221 ;  Dike  v.  Ricks,  Cro.  Car. 
335;  W.  Jones,  327. 

'  Culpepper  v.  Aston,  2  Ch.  Ca.  116,  223;  Walker  v.  Smalhvood,  Arab. 
676. 


§§  788-790.]  GENERAL   RULES.  427 

not  offering  more  of  the  estate  for  sale  than  is  necessary ;  for 
the  purchaser  cannot  know  the  exact  sum  wanted,  together  with 
all  the  incidental  costs,  charges,  and  expenses.^  If,  however, 
the  sale  is  delayed  for  a  great  number  of  years,  and  there  are 
circumstances  naturally  leading  to  a  suspicion  that  there  are  no 
debts  after  such  a  length  of  time,  the  purchaser  will  be  affected 
by  such  suspicious  circumstances,  and  put  upon  his  inquiry .^ 

§  790.  If  a  person  holds  money  or  other  property  in  his  hands 
belonging  to  another,  he  cannot  discharge  himself  from  lia- 
bility, except  by  transferring  the  property  or  money  to  the  true 
owner.  At  laiv  the  trustee  is  the  true  owner  of  i)roperty  that 
is  vested  in  him,  but  in  equity  the  cestui  que  trust  is  the  true 
owner.  Hence  the  complications  and  doubts  that  have  arisen 
concerning  trustees'  receipts,  and  the  duty  of  purchasers  to 
look  to  the  application  of  the  purchase-money.  Thus  if  an 
estate  is  vested  in  trustees  to  sell  and  divide  the  purchase- 
money  between  B.  and  C,  a  court  of  law  treat  the  trustees  as 
the  true  owners,  and  their  receipts  for  the  purchase-money 
as  valid  discharges;  but  courts  of  equity  treat  B.  and  C, 
the  cestuis  que  trust,  as  the  true  owners,  and  the  trustees  as 
mere  instruments.  Courts  of  equity,  therefore,  require  that 
the  receipts  for  the  purchase-money  shall  be  signed  by  the 
rightful  owners,  or  the  purchase-money  must  be  properly  ap- 
plied to  their  use,  according  to  the  terms  of  the  trust,  or  there 
can  be  no  such  conveyance  of  the  estate  as  to  bar  their  bene- 
ficial interest.^  The  purchaser  must,  therefore,  hold  the  estates, 
subject  to  their  equities,  although  he  may  have  paid  the  money 
to  the  trustee.  Thus  the  application  of  the  purchase-money,  or 
the  power  of  the  trustees  to  sign  receipts  for  it,  becomes,  in 
equity,  a  question  of  title,^  or  rather  a  question  of  the  equitable 
title,  which  is  the  principal  thing ;  for  the  legal  title,  without 

'  Spalding  v.  Slialmer,  1  Vern.  301. 
'  Pierce  v.  Scott,  1  Y.  &  Col.  257. 
'  VVeatherby  v.  St.  Giorgio,  2  Hare,  624. 
*  Forbes  v.  Peacock,  12  Sim.  521. 


428  APPLICATION    OP   PURCHASE-MONEY.       [CHAP.  XXVI. 

tlie  beneficial  use,  is  of  little  consequence.  Thus  the  general 
rule  is,  tha,t  prima  facie  the  cestuis  que  trust  must  sign  receipts 
for  the  purchase-money,  or  tlie  purchaser  must  look  to  its 
application.  But  this  rule  may  be  controlled  by  a  great  num- 
ber of  circumstances  and  considerations. 

§  791.  First,  it  may  be  controlled  by  the  exjjress  terms  of 
the  trust.  For  if  the  settlor  expressly  provides  that  the  receipts 
of  the  trustees  shall  be  sufficient  discharges  of  the  purchase- 
money  ,i  the  cestuis  ciue  trust  cannot  claim  in  opposition  to  the 
instrument  that  confers  upon  them  all  their  rights ;  in  other 
words,  they  cannot  claim  under  one  part  of  the  instrument, 
and  reject  the  other  parts. 

§  792.  Words  in  a  po^yer  of  attorney  or  other  instrument, 
authorizing  the  attorney  or  trustee  "  to  sign  discharges  in  the 
name  of  the  assignor  or  otherwise,  and  to  do  all  other  acts,  as 
the  principal  might  have  done,^^  have  been  held  to  make  receipts 
signed  in  pursuance  thereof  valid  ;  ^  unless  such  words  are  con- 
trolled by  some  other  part  of  the  instrument.'^  Where,  however, 
trustees  were  entitled  to  receive  a  sum  of  stock,  and  had  power 
to  vary  the  securities,  a  receipt  signed  by  them  for  cash  was 
held  to  be  no  discharge  ;  though  the  court  intimated,  that  if 
there  had  been  any  indication  that  the  receiving  of  cash  was 
intended  as  a  part  of  the  power  to  vary  the  securities,  the 
decision  might  have  been  the  other  way.*  This  seems  to  be 
a  harsh  and  unnecessary  application  of  the  rule.  If  the  receiv- 
ing of  cash,  in  the  process  of  varying  the  securities,  was  no 
breach  of  the  trust,  the  receipts  of  the  trustees  ought  to  have 
been  sufficient.^ 

'  Duffy  V.  Calvert,  6  Gill,  487. 

*  Binks  V.  Rokeby,  2  Mad.  527;  Desborough  v.  Harris,  5  De  G.,  M.  & 
G.  439  ;  Ottley  v.  Gray,  16  L.  J.  Ch.  512;  Curton  v.  Jellicoe,  14  Ir.  Ch. 
180. 

^  Brasier  v.  Hudson,  9  Sim.  1. 

*  Pell  V.  De  Winton,  2  De  G.  &  J.  13. 
6  Levvin,  333  (oth  ed.). 


§§  790-794.]   HOW  THE  GENERAL  RULE  IS  CONTROLLED.     429 

§  793.  In  the  second  place,  the  rule  may  be  controlled  by  an 
implied  intention  that  the  trustee  shall  have  the  power  to  give 
valid  receipts  for  the  purchase-money.  Thus  if  a  settlor  creates 
a  trust  for  an  immediate  sale,  it  is  clearly  implied  that  a  legal 
and  equitable  receipt  for  the  purchase-money  shall  be  signed 
hy  some  one,  at  the  time  of  the  sale.  There  can  be  no  convey- 
ance without  payment  of  the  purchase-money,  and  there  can 
be  no  payment  without  a  complete  discharge.  If,  therefore, 
a  sale  is  directed  when  the  cestuis  que  trust,  or  some  of  them, 
are  not  in  existence,  or  sui  juris,  or  of  age,  or  of  sufficient 
capacity  to  act,  there  must  be  an  implied  intention  that  the 
receipts  of  the  trustees  shall  be  valid  releases  of  the  purchase- 
money.  It  has  been  held,  where  an  immediate  sale  was  con- 
templated, and  some  of  the  cestuis  que  trust  were  infants,  that 
the  trustees  had  an  implied  power  of  giving  valid  discharges 
for  the  purchase-money.^  But  the  mere  fact  that  the  cestuis 
que  trust  are  out  of  the  jurisdiction  raises  no  presumption  that 
the  settlor  intended  that  the  trustees  should  sign  receipts. 

§  794.  Again,  the  general  rule  is  controlled,  if  a  sale-  is 
directed,  but  the  proceeds  are  not  to  be  paid  over  to  the  cestuis 
que  trust,  but  are  to  be  held  by  the  trustees  u{)on  some  special 
trusts.  In  such  case  the  implication  is  plain,  that  tlie  settlor 
intended  to  confide  the  execution  of  the  trust  to  the  trustees, 
and  that  they  have  power  and  authority  to  receive  the  trust 
fund  and  to  give  receipts.^     The  earlier  English  lawyers  were 

^  Sowarsby  v.  Lacy,  4  Mad.  1'42;  Lavender  v.  Stanton,  G  Mad.  46; 
Broc'don  v.  Breedon,  1  R.  &  M.  413  ;  Ballour  v.  Welland,  IG  Ves.  1.01 ; 
Ciitlibort  V.  Baker,  Sugd.  V.  &  P.  842  (11th  ed.). 

*  Doran  v.  Wiltshire,  3  Swans,  699;  Balfonr  v.  Welland,  16  Ves.  157; 
Wood  r.  Ilarraan,  5  Mod.  368 ;  Locke  v.  Lonias,  6  De  (t.  &  Sm.  32G ; 
Glynn  v.  Locke,  3  Dr.  &  W.  11 ;  Ford  v.  Ryan,  4  Ir.  Ch.  342.  See  Cox  v. 
Cox,  1  K.  &  J.  251  ;  Worinley  r.  Wormlcy,  8  Wiieat.  421,  423;  Lining  v. 
Peyton,  2  Des.  375;  Redlieinier  v.  Pyson,  1  Speer's  E(j.  135  ;  Nichols  v. 
Peak,  1  Beasl.  Ch.  69;  Coonrod  v.  Coonrod,  6  Ham.  114;  Sims  v.  Lively, 
14  B.  Mon.  433;  Steele  v.  Levisay,  11  Grat.  454;  Potter  v.  Gardner,  12 
Wheat.  499;  Clyde  v.  Simpson,  4  Ohio  St.  445;  Hauser  v.  Shore,  5  Ired. 


430  APPLICATION    OF   PURCHASE-MONEY.       [CHAP.  XXVI. 

of  opinion,  that,  in  such  cases,  the  purchasers  were  only  re- 
quired to  see  to  the  investment  of  the  trust  fund  or  purchase- 
money,  and  that  they  could  not  be  responsible  for  any  subsequent 
misapplication. 1 

§  795.  If  the  trust  is  to  pay  debts  generally,  the  purchaser 
cannot  be  subject  to  the  rule  that  he  shall  see  to  the  application 
of  the  purchase-money  ;  ^  or  if  the  trust  is  to  pay  debts  and 
legacies,-^  or  to  pay  a  particular  debt  and  all  other  debts,^  or  to 
pay  legacies,^  or  to  pay  debts  and  apply  the  balance  to  the 
support  of  some  one,^  there  can  be  no  obligation  to  see  to  the 

Eq.  357 ;  Dalzell  v.  Crawford,   1  Pars.  Eq.  37 ;  Garnett  v.  Macon,  6  Call, 
308;  2  Brock.  185;  Williamson  v.  Morton,  2  Md.  Ch.  91. 
^  Booth's  Cas.  and  Opin.  114. 

2  Forbes  v.  Peacock,  11  Sim.  152;  12  Sim.  528;  1  Phil.  717;  Stroughill 
V.  Anstey,  1  De  G.,  M.  &  G.  635 ;  Dowling  v.  Hudson,  17  Beav.  248 ;  Cul- 
pepper V.  Aston,  2  Ch.  Ca.  223 ;  AVatkins  v.  Cheek,  2  S.  &  S.  205 ;  Hard- 
wick  V.  Mynd,  1  Anst.  109  ;  Anon.  Moseley,  96  ;  Johnson  v.  Kennett,  3  M. 
&  K.  630 ;  Rogers  v.  Skillicorne,  Amb.  189 ;  Walker  v.  Smallwood,  Amb. 
677 ;  Barker  v.  Devonshire,  3  Mer.  310 ;  Abbot  v.  Gibbs,  1  Eq.  Ca.  Ab. 
358;  Binks  v.  Rokeby,  2  Mad.  238;  Dunch  v.  Kent,  1  Vern.  260;  Elliot 
V.  Merryman,  Barn.  78;  1  Lead.  Ca.  Eq.  40;  Eng.  and  Amer.  notes; 
Garnett  v.  Macon,  2  Brock.  185,  186;  6  Call,  308;  Bruch  v.  Lantz,  2 
Rawle,  392;  Dalzell  v.  Crawford,  1  Pars.  Eq.  57;  Smith  v.  Guyon,  1  Bro. 
Ch.  186 ;  Ithell  v.  Beane,  1  Ves.  215 ;  Lloyd  v.  Baldwin,  1  Ves.  215 ;  Dal- 
ton  V.  Hewen,  6  Mad.  9 ;  Ex  parte  Turner,  9  Mod.  418  ;  Gosling  v.  Carter, 
1  Coll.  644;  Eland  v.  Eland,  1  Beav.  235;  4  M.  &  Cr.  420;  Jones  v. 
Price,  11  Sim.  557 ;  Currer  v.  AValkley,  2  Dick.  649 ;  3  Sugd.  V.  &  P. 
168  (10th  ed.)  ;  Gardner  v.  Gardner,  3  Mason,  178  ;  Potter  v.  Gardner,  12 
Wheat.  198;  Laurens  v.  Lucas,  6  Rich.  Eq.  217;  Williams  v.  Otey, 
8  Humph.  568;  Hauser  v.  Shore,  5  Ired.  Eq.  357;  Goodrich  u.  Proctor, 

1  Gray,  570;  Langmead's  Trusts,  7  De  G,,  M.  &  G.  353. 

3  Ibid. ;  Co  Lit.  29  b. ;  Butl.  n. ;  Williamson  v.  Curtis,  3  Bro.  Ch.  96 ; 
Johnson  v.  Kennett,  3  My.  &  K.  630;  6  Ves.  654,  note  a;  Page  v.  Adam, 
4  Beav.  629 ;  Grant  v.  Hook,  13  S.  &  R.  259 ;  Cadbury  v.  Duval,  10  Barr, 
265 ;  Andrews  v.  Sparhawk,  13  Pick.  393 ;  Sims  v.  Lively,  14  B,  Mon. 
435. 

*  Robinson  v.  Lowater,  17  Beav.  592;  5  De  G.,  M.  &  G.  272. 

*  Grant  v.  Hook,  13  S.  &  R.  259 ;  Hannum  v.  Spear,  1  Yeates,  553 ; 

2  Dall.  291;  Cryders  App.  1  Jones,  72. 

«  State  V.  Cincinnati,  16  Ohio  St.  169. 


§§  794-797.]      CONTROL  of  the  general  rule.  431 

payment  of  debts  and  legacies.  Sucli  a  trust  must  necessarily 
require  time,  and  the  investigation  of  long  accounts  and  vouch- 
ers :  the  purchaser  could  know  neither  the  creditors  nor  the 
amounts.  Where  debts  and  legacies  are  to  be  paid,  the  debts 
must  first  be  paid,  and  as  the  purchaser  can  be  under  no  obli- 
gation to  examine  into  the  debts,  so  he  cannot  be  required  to 
take  any  action  in  regard  to  the  legacies  ;  and  if  one  debt  is 
named,  but  is  coupled  with  others  not  named,  the  same  con- 
siderations apply.  In  such  trusts,  the  testator  must  be  pre- 
sumed to  have  intended  that  his  trustees  should  have  the  full 
power  to  give  receipts  for  the  purchase-money,  in  order  to 
apply  it  to  the  purposes  pointed  out. 

§  796.  But  where  the  trust  is  to  pay  from  the  proceeds  of  a 
sale  a  particular  debt,  or  scheduled  debts  only,  or  to  pay  cer- 
tain legacies  named,  the  purchaser  must  see  that  the  money 
finds  its  way  into  the  hands  of  those  to  whom  it  belongs.  In 
such  case,  there  is  no  trust  that  requires  time  or  discretion. 
The  purchase-money  is  simply  to  be  distributed  to  certain 
known  persons  in  sums  easily  ascertained,  and  there  is  no 
reason  to  presume  that  the  settlor  intended  that  the  general 
rule  should  not  apply. ^ 

§  797.  In  Stroughill  v.  Anstey,  Lord  St.  Leonards  said  that, 
"  if  a  trust  is  created  for  the  payment  of  debts  and  legacies, 

'  Doranr.  Wiltshire,  3  Swans.  701;  Smith  i'.  Guyon,  1  Bro.  Ch.  186; 
Rogers  v.  Skillicorne,  Amb.  189;  Humble  v.  Bill,  1  Eq.  Ca.  Ab.  359; 
Anon.  Moseley,  96  ;  Spalding  v.   Shalmer,  1  Vern.  303 ;  Abbot  v.   Gibbs, 

1  Eq.   Ca.    Ab.  358;  Elliott  v.  Merryman,  Barn.   81;  Binks  v.  Rokeby, 

2  Mad.  238;  Ithell  v.  Beane,  1  Ves.  215;  Lloyd  v.  Baldwin,  1  Ves.  173; 
Mather  v.  Norton,  21  L.  J.  Ch.  15 ;  Dunch  v.  Kent,  1  Vera.  260 ;  Cul- 
pepper V.  Aston,  2  Ch.  Ca.  223;  Johnson  v.  Kennett,  3  My.  &  K.  930; 
Horn  V.  Horn,  2  S.  «&  S.  448 ;  Dowman  v.  Rust,  6  Rand.  587 ;  Bugbee  v. 
Sargent,  23  Me.  269;  Leavitt  v.  Wooster,  14  N.  H.  550;  Swasey  v.  Little, 
7  Pick.  296;  Lupton  i;.  Lupton,  2  Johns.  Ch.  614;  Kemp  v.  McPhersoii, 
7  H.  &  J.  320 ;  Long  v.  Long,  1  Watts,  267  ;  Hoover  v.  Hoover,  5  Barr, 
351 ;  Dalzell  e.  Crawiord,  1  Pars.  Eq.  57;  Dufiy  v.  Calvert,  6  Gill,  487. 


432  APPLICATION   OF   PURCHASE-MONEY.       [CHAP.  XXVI. 

the  purchaser  or  mortgagee  shall  in  no  case  be  bound  to  see 
to  the  application  of  the  money  raised.  This  would  be  a  con- 
sistent rule  on  which  everybody  would  be  able  to  act,  author- 
ized, too,  by  the  words  of  the  testator,  and  drawing  none  of 
those  fine  distinctions  which  embarrass  courts  and  counsel, 
and  lead  to  litigation ;  and  it  is  one  to  which  I  shall  adhere  as 
long  as  I  sit  in  this  court."  ^  This  rule,  thus  stated,  proceeds 
upon  the  ground  that,  in  all  cases  where  a  testator  has  given 
his  trustees  a  power  to  sell  to  pay  debts  generally,  or  to  pay  par- 
ticular debts,  or  to  pay  legacies  only,  he  has  reposed  a  special 
confidence  in  the  trustees  for  those  purposes,  and  has  declared 
that  they  shall  execute  these  trusts  ;  and  that  purchasers  have 
nothing  to  do  with  their  execution,  and  therefore  need  not  look 
to  the  application  of  the  purchase-money,  whether  it  is  to 
pay  debts  generally,  or  debts  and  legacies,  or  particular  debts 
named,  or  legacies  only.  .  Mr.  Redfield  asserts  that  this  is  the 
true  principle,  and  that  the  old  rule  that  a  purchaser  need  not 
look  to  the  application  of  the  purchase-money  where  the  trust 
is  to  pay  debts  generally,  or  debts  and  legacies,  but  must  see 
to  its  application,  where  the  trust  is  to  pay  particular  debts  or 
legacies  only,  rests  upon  no  sound  distinction.^  He  admits, 
however,  that  the  distinction  is  established  and  acted  upon  in 
the  American  cases.^  But  a  purchaser  under  a  decree  of  the 
court  need  not  look  to  the  application  of  the  purchase-money, 

'  Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  653.  See  this  case  for  an 
admirable  discussion  of  principles  and  of  the  prior  cases.  But  see  17  Jurist, 
pt.  ii.  251,  where  the  case  is  criticised,  and  the  assertion  is  made,  that  prior 
to  that  case  and  Forbes  v.  Peacock,  1  Phil.  717,  the  purchaser  was  relieved 
from  seeing  to  the  application  of  the  purchase-money  in  the  case  of  a  trust 
for  the  payment  of  debts  generally,  not  from  an  intention  in  the  settlor,  but 
from  the  impossibility  of  the  case. 

2  o  Redf.  on  Wills,  235.  Mr.  Lewin,  p.  352,  thinks  this  would  be  the 
better  rule.     See  also  Sugd.  V.  &  P.  8U,  8^8  (11th  ed.). 

'  3  Redf.  on  Wills,  236  ;  Andrews  v.  Sparhawk,  13  Pick.  393  ;  Hauser  v. 
Shore,  5  Ired.  Eq.  357;  Cadbury  v.  Duval,  10  Penn.  St.  265;  Gardner 
V.  Gardner,  3  Mason,  178 ;  St.  Mary's  Church  v.  Stockton,  4  Halst.  Ch. 
520;  Duffy  v.  Calvert,  6  Gill,  487. 


§§  797-799.]      CONTROL  of  the  general  rule.  433 

whatever   may  be   the   purpose    for   which   it   is   to   be   em- 
ployed.^ 

§  798.  In  the  United  States,  where  lands  are  holden  for  the 
payment  of  the  testator's  debts,  a  devise  of  lands  for  the  pay- 
ment of  particular  debts  or  legacies  only,  can  impose  upon  the 
purchaser  no  obligation  to  see  to  the  application  of  the  pur- 
chase-money ;  for  the  reason  that  the  lands  being  holden  to 
pay  all  the  debts,  the  purchaser  would  be  compelled  to  inves- 
tigate all  the  testator's  business  to  ascertain  whether  the  pur- 
chase-money should  be  paid  to  a  particular  deljt  or  not,  or 
whether  it  could  be  applied  to  the  payment  of  legacies.  In  all 
cases  where  land  is  sold,  by  a  decree  or  license  of  the  probate 
or  other  court,  to  pay  debts  or  legacies,  the  purchaser  is  exon- 
erated from  all  responsibility .^  It  may  be  stated  that  the  strict 
English  rule  is  not  favored  by  the  American  courts,  althougli 
they  apply  the  doctrine  in  cases  where  it  cannot  be  avoided.^ 

§  799.  Where  trustees  have  authority  to  invest  and  vary  the 
securities,  power  to  sign  receipts  is  implied  from  the  nature  of 
the  trust.^  If  they  are  authorized  to  invest  on  security,  the 
borrower  has  a  right  to  pay,  and  the  trustee  must  receive  the 
money  and  give  a  receipt,  though  there  is  no  express  power 
given  to  sign  receipts.^  Where  the  trustee  was  directed  to 
invest  on  security,  but  real  security  was  not  mentioned,  and  he 
loaned  on  mortgage,  the  court  thought  it  doubtful  whether  he 
had  power  to  sign  the  receipt,  and  declined  to  compel  a  vendee 

*  Coombs  V.  Jordan,  3  Bland,  284,329;  Wilson  v.  Davisson,  2  Rob. 
(Va.)  385,  412. 

*  Grant  v.  Hook,  13  S.  &  R.  259;  Cryder's  App.  1  Jones,  72;  Coombs 
V.  Jordan,  3  Bland,  284,  329 ;  Wilson  v.  Davisson,  2  Rob.  (Va.)  385,  412. 

'  Dalzell  V.  Crawford,  1  Pars.  Eq.  57 ;  Rutledge  v.  Smith,  1  Busb.  Eq. 
283;  Redheimer  V.  Pyron,  1  Spears,  E([.  141 ;  Elliot  v.  Merryman,  1  Lead. 
Ca.  Eq.  40,  Amer.  notes. 

"*  Lock  V.  Lomas,  5  De  G.  &  Sni.  326. 

*  Wood  u.  Ilarman,  5  Mad.  368. 
VOL.  II.  28 


434  trustees'  receipts.  [chap.  xxvi. 

to  perform  a  contract  specifically,  and  take  the  title .^  It  is 
said  that  the  authority  to  sign  the  receipt  in  such  cases  depends 
upon  the  intention,  and  that  there  could  be  no  intention  where 
there  was  no  authority  to  lend  on  mortgage.  This  is  a  refine- 
ment that  probably  would  not  be  recognized  in  our  courts, 
mortgages  being  among  recognized  investments  in  this  coun- 
try. But  a  power  of  sale  and  exchange  would  not  imply  a 
power  to  sign  receipts.^ 

§  800.  But  whatever  power  and  authority  the  trustee  may 
have  to  receive  the  purchase-money  and  give  valid  receipts  and 
discharges,  tlie  purchaser  will  not  be  protected  by  the  receipt 
if  there  was  any  collusion  between  them;^  or  if  he  had  notice, 
from  the  intrinsic  nature  and  character  of  the  transaction,  that 
the  trustee  intended  to  misapply  the  purchase-money  ;  *  or  if  a 
suit  was  pending  for  the  administration  of  the  trust,  or  to  take 
it  out  of  the  hands  of  the  trustees.^  If  the  purchaser  deals 
with  the  trustee  long  after  the  trust  should  have  been  executed, 
he  is  bound  to  satisfy  himself  that  the  trustee  is  acting  in  the 
proper  discharge  of  his  duty.^ 

§  801.  The  exemption  of  the  purchaser  from  seeing  to  the 
application  of  the  purchase-money  depends  upon  the  intention 

'  Hanson  v.  Beverley,  Sugd.  V.  &  P.  848  (llth  ed.). 

2  Cox  V.  Cox,  1  K.  &  J.  251. 

3  Rogers  v.  Skillicorne,  Amb.  189 ;  Eland  v.  Eland,  4  M.  &  Cr.  427 ; 
Potter  V.  Gardner,  12  Wheat.  498 ;  Garnett  v.  Macon,  2  Brook.  185 ; 
6  Call,  308. 

*  Watkin  V.  Cheek,  2  S.  &  S.  199 ;  Colyer  v.  Finch,  5  H.  L.  Ca.  923 ; 
Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  648  ;  Burt  v.  Trueman,  6  Jur. 
(n.  s.)  721 ;  Eland  v.  Eland,  4  M.  &  Cr.  427  ;  Williams  v.  Morton,  2  Md. 
Ch.  94;  Clyde  v.  Simpson,  4  Ohio  St.  445;  Garnett  v.  Macon,  2  Brock. 
185  ;  6  Call,  308  ;  Shaw  v.  Spencer,  100  Mass.  388. 

s  Lloyd  V.  Baldwin,  1  Ves.  173. 

6  Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  654;  Forbes  v.  Peacock,  11 
Sim.  502 ;  12  Sim.  528;  11  M.  &  W.  637 ;  Devaynes  v.  Robinson,  24  Beav. 
93;  McNeille  v.  Acton,  2  Eq.  R.  21.  See  Sabin  v.  Heape,  27  Beav.  553; 
Redheimer  v^  Pyron,  1  Spears,  Eq.  134. 


§§  799-802.]  CHARGES   UPON    AN   ESTATE.  435 

of  the  settlor  at  the  date  of  the  instrument:  such  exemption  is 
not  affected  by  circumstances  that  transpire  subsequently ; 
therefore  the  intention  must  be  obtained  from  the  construction 
of  the  instrument  under  the  circumstances  existing  when  it 
was  made,  and  such  construction  cannot  be  changed  by  a  change 
of  circumstances.  Thus  if  a  trust  is  created  to  pay  debts  gen- 
erally, and  then  to  pay  legacies  and  apply  the  surplus  to  cer- 
tain purposes,  and  the  purchaser  knows  that  all  debts  have 
been  paid,  he  will  not  be  compelled  to  see  to  the  application  of 
the  purchase-money  to  the  payment  of  the  legacies,  or  to  the 
other  determined  purposes,  for  the  reason  that,  when  the  in- 
strument was  made,  the  testator  could  not  have  intended  that 
the  purchaser  should  see  to  the  application  of  the  purchase- 
money  to  the  payment  of  the  debts  generally,  and  the  other 
purposes  named,  and  no  change  of  circumstances  can  change 
this  intention. 1 

§  802.  The  question  has  been  raised,  Who  has  the  power  to 
sell  and  give  a  discharge  for  the  purchase-money,  in  case  a 
testator  charges  his  real  estate  with  certain  payments,  and  then 
clevises  it  to  trustees  upon  trusts,  which  do  not  require  a  sale  ? 
Can  the  executor  sell  ?  A  few  cases  seem  to  intimate  that  he 
can.^  But  it  is  said  that  a  mere  charge  cannot  give  executors 
a  legal  power.^     On  the  other  hand,  it  is  said  that  there  is  no 

^  Johnson  v.  Kennett,  3  My.  &  K.  62i,  reversing  s.  c.  6  Sim.  384 ; 
Eland  V.  Eland,  4  My.  &  Cr.  420 ;  Page  v.  Adam,  4  Beav.  2G9 ;  Forbes  v. 
Peacock,  1  Phil.  717,  reversing  same  case  11  Sim.  152;  12  Sim.  528; 
Sabin  v.  Heape,  27  Beav.  553 ;  Stroughill  v.  Anstey,  1  De  G.,  M.  &  G. 
653 ;  Mather  v.  Norton,  16  Jur.  309 ;  Garnett  v.  Macon,  2  Brock.  238 ;  6 
Call,  308;  Gosling  v.  Carter,  1  Coll.  Ch.  648. 

"  Shaw  V.  Borrer,  1  Keen,  559  ;  Ball  v.  Harris,  8  Sim.  485 ;  4  My.  & 
Cr.  264;  Gosling  v.  Carter,  1  Coll.  649;  Robinson  v.  Lowater,  17  Beav. 
592;  5  De  G.,  M.  &  G.  272;  Eidsforth  v.  Armstead,  2  K.  &  J.  333; 
Wrigley  p.  Sykes,  21  Beav.  337;  Storry  v.  Wal-ih,  18  Beav.  568;  Colyer 
V.  Finch,  5  H.  L.  Ca.  905;  Hodkinson  v.  Quinn,  1  J.  &  H.  310;  Greetham 
V.  Cotton,  34  Beav.  615. 

8  Doe  V.  Hughes,  6  Exch.  231. 


436  WHERE    ESTATES   ARE    CHARGED.         [CHAP.  XXTI. 

difference  between  a  charge  and  a  trust  for  the  payments  to  be 
made,  and  therefore  trustees  take  the  legal  estate  subject  to  all 
the  trusts,  and,  among  others,  the  trust  of  making  the  pay- 
ments charged.^  This  seems  to  have  been  the  opinion  of  Lord 
Hardwicke.2  Mr.  Justice  "Wilde  said  that  there  was  no  differ- 
ence between  a  devise  of  an  estate  to  be  sold,  and  a  devise  of 
an  estate  charged  in  the  trustees'  hands  with  certain  payments  ; 
that  there  was  no  ground  for  the  distinction,  either  in  principle 
or  upon  authority.^  In  sucli  case,  the  money  to  make  the  pay- 
ments charged  could  not  be  allowed  to  go  into  the  hands  of 
the  executor,  as  he  has  nothing  to  do  with  the  real  estate.* 
There  seems  to  be  no  doubt  that  the  trustee,  with  the  concur- 
rence of  the  executor,  can  make  a  good  title ;  ^  but  it  may 
happen  that  such  concurrence  cannot  be  had.  If  a  testator 
charges  certain  payments  upon  real  estate,  and  then  devises 
the  real  estate  to  a  devisee  to  hold  absolutely,  the  devisee  can 
sell  the  estate,  and  give  valid  receipts  and  discharges  for  the 
purchase-money.^ 

^  Elliot  I'.  Merryman,  Barn.  81 ;  1  Lead.  Ca.  Eq.  40 ;  Ex  parte  Turner, 
9  Mod.  418;  Jenkyns  ?;.  Hiles,  6  Ves.  654,  ii. ;  Bailey  t\  Elkins,  7  Ves. 
323 ;  Wood  v.  White,  4  M.  &  C.  482 ;  Commissioners,  &c.  v.  Wybrants, 
2  Jon.  &  La.  197 ;  Forbes  v.  Peacock,  12  Sim.  527. 

*  Ex  parte  Turner,  9  Mod.  418;  and  see  Colyer  v.  Finch,  5  H.  ,L.  Ca. 
922.     Mr.  Lewin  is  of  the  same  opinion.     Lewin  ou  Trusts,  342,  343. 

2  Andrews  v.  Sparhawk,  13  Pick.  401. 

■•  Gosling  V.  Carter,  1  Coll.  650. 

5  Hodkinson  v.  Quinn,  1  John.  &  H.  303 ;  Cook  v.  Dawson,  29  Beav. 
126 ;  3  De  G.,  F.  &  J.  127 :  Shaw  v.  Borrer,  1  Keen,  569 ;  Ball  v.  Harris, 
8  Sim.  485 ;  4  My.  &  C.  264;  Page  v.  Adam,  4  Beav.  269 ;  Forbes  v.  Pea- 
cock, 11  Sim.  152;  12  Sim.  528;  11  M.  &  W.  630;  1  Phil.  717;  Sabin  v. 
Heape,  27  Beav.  553. 

*  Bailey  v.  Elkins,  7  Ves.  323  ;  Commissioners,  &c.  v.  Wybrants,  2  Jon. 
&  L.  198;  Elton  v.  Harrison,  2  Swans.  276,  n.  ;  Elliot  v.  Merryman,  Barn. 
78 ;  Due  v.  Hughes,  6  Exch.  231 ;  Eland  v.  Eland,  1  Beav.  234;  Dalton  v. 
Young,  6  Mad.  9 ;  Johnson  v.  Kennett,  6  Sim.  384 ;  3  My.  &  K.  624 ; 
Page  V.  Adam,  4  Beav.  269 ;  Colyer  v.  Finch,  5  H.  L.  Ca.  905 ;  Jenkyns 
V.  Hiles,  6  Ves.  654 ;  Ball  v.  Harris,  4  My.  &  C.  267 ;  Wood  v.  White, 
4  My.  &  C.  482 ;  Ex  parte  Turner,  9  Mod.  418 ;  Andrews  v.  Sparhawk, 
13  Pick.  393. 


§§  802,  803.]  CHARGES    UPON   AN    ESTATE.  437 

§  803.  If  a  testator  charges  payments  to  be  made  upon  his 
real  estate,  but  does  not  devise  it,  and  it  descends  to  liis  heirs, 
can  they  sell  it  and  give  valid  receipts  and  discharges  for  the 
purchase-money  ?  It  is  clear  that  they  cannot,  for  they  take 
nothing  under  the  will ;  and  the  testator  has  not  expressly,  nor 
by  implication,  appointed  them  trustees  to  make  the  payments.^ 
They  may  sell  the  estate  and  pass  the  legal  title,  and  if  they 
make  the  payments  no  questions  can  be  raised ;  but  if  they 
misapply  the  money,  the  land  would  still  be  holden  for  the  pay- 
ments ;  that  is,  the  purchaser  in  such  cases  would  be  bound  to 
see  to  the  application  of  the  purchase-money.  If  the  heirs  are 
under  disabilities,  as  infants  or  married  women,  can  the  exec- 
utors sell  the  estate  for  the  payment  of  the  charges  upon  it  ? 
In  Doe  t'.  Hughes,  the  court  held  that  a  charge  had  no  opera- 
tion in  law,  but  must  be  enforced  in  equity,  from  which  it  fol- 
lows that  the  executors  could  not  sell  without  a  license  or  decree 
of  the  court.2  This  case  has  been  much  criticised  on  the  ground 
that  where  a  direction  to  sell  and  make  payments  is  given,  but 
no  person  is  named,  the  executors  have  the  power  to  sell  by 
implication ;  and  so  it  is  thought  that  where  there  are  charges 
upon  real  estate,  there  is  an  implied  power  of  sale  in  the  exec- 
utors.^ ]\[r.  Lewin  tliinks  that  Doe  v.  Hughes  was  a  sound 
decision  upon  the  legal  question,  but  that  the  executors  have 
an  equitable  power  of  sale,  and  the  holders  of  the  legal  title  are 
trustees  for  them."*     Even  upon  this  statement  of  the  rights  and 

1  Gosling  V.  Carter,  1  Coll.  650;  Robson  v.  Flight,  34  Beav.  110; 
6  N.  R.  344;  Forbes  v.  Peacock,  11  M.  &  W.  638;  Doe  v.  Hughes, 
6  Exch.  231. 

'  Doe  V,  Hughes,  6  Exch.  231. 

'  Robinson  v.  Lowatcr,  17  Beav.  601 ;  Wrigley  v.  Sykes,  21  Beav.  337 ; 
Storry  v.  Walsh,  18  Beav.  568;  Sabin  v.  Ilcape,  27  Beav.  553;  Hodkinson 
V.  Quinn,  1  John.  &  H.  309;  Cook  v.  Dawson,  29  Beav.  123;  3  De  G., 
F.  &  J.  127 ;  Greetham  v.  Colton,  34  Beav.  615  ;  Forbes  v.  Peacock,  11  M. 
&  W.  630;  Tylden  v.  Hyde,  2  S.  &  S.  238;  Bentham  v.  Wiltshire,  4  Mad. 
44  ;  Re  Wise,  5  De  G.  &  Sm.  415 ;  Eidsforth  v.  Armstead,  2  K.  &  J.  333 ; 
Sugd.  Pow.  129  (8th  ed.)  ;  Colyer  v.  Finch,  5  H.  L.  Ca.  922. 

*  Lewin,  346. 


438  trustees'  receipts.  [chap.  xxvi. 

powers  of  the  parties,  it  is  clear  that  there  must  be  a  decree 
or  license  for  sale  from  some  court  having  jurisdiction,  if  the 
holders  of  the  legal  title  are  under  liabilities. 

§  804.  If  a  testator  charges  payments  to  be  made  upon  his 
real  estate,  and  then  devises  it  subject  to  the  charges,  and  the 
devisee  dies  in  the  testator's  lifetime,  can  the  heirs  sell  and 
give  valid  discharges  for  the  purchase-money?  The  case  stands 
as  if  no  devisee  had  been  named,  but  the  estate  had  been  allowed 
to  descend  to  the  heir.^  There  is  no  doubt  that  the  executor 
cannot  sell,  as  the  testator  has  expressly  appointed  a  devisee 
who  might  have  sold  as  trustee  for  the  payment  of  the  charges : 
the  heir  may  sell  and  pass  the  legal  title ;  but,  if  he  misapplies 
the  purchase-money,  the  land  would  still  be  holden  for  the 
charges.^ 

§  805.  If  a  testator  charges  payments  to  be  made  upon  his 
real  estate,  and  devises  the  same  to  A.  for  life  with  contingent 
remainders  or  other  limitations  which  render  it  impossible  that 
the  devisees  can  sell  under  an  implied  power,^  the  court  will,  if 
possible,  imply  a  power  of  sale  in  the  executors,  on  the  ground 
that  where  there  are  charges  that  require  a  sale,  and  it  is 
impossible  for  the  devisees  to  sell,  and  no  person  is  named  to 
sell,  there  must  be  an  implied  power  to  sell  in  the  executors. 
Courts  in  England  give  this  construction  to  such  bequests  to 
avoid  a  suit  in  chancery  for  a  sale  ;  ^  but  in  the  United  States 
the  proper  course  would  be  for  the  executors  to  apply  to  the 
Court  of  Probate  for  a  license  to  sell  and  make  the  payments 
ordered.     Mr.  Lewin  says  that  the  true  principle  which  ought 

1  See  ante,  §  803.  But  see  Hardwick  v.  Mynd,  1  Anst.  109 ;  Austin  v. 
Martin,  29  Beav.  523. 

=  Gosling  V.  Carter,  1  Coll.  644 ;  Eidsforth  v.  Armstead,  2  K.  &  J.  333  ; 
Wrigley  v.  Sykes,  21  Beav.  337;  Bolton  r.  Stannard,  4  Jur.  (x.  s.)  576; 
Robinson  v.  Lowater,  17  Beav.  592 ;  5  De  G.,  M.  &  G.  272 ;  Sabin  v. 
Heape,  27  Beav.  553.     But  see  Doe  v.  Hughes,  6  Exeh.  223. 

3  Lewin,  348. 


§§  803-806.]       WHO  MAY  RECEIVE  THE  PURCHASE-MONEY.         439 

to  govern  in  these  cases  is  this,  that  where  a  testator  devises 
an  estate  to  trustees  or  to  a  beneficiary,  and  charges  payments 
to  be  made,  then  the  trustees  or  the  beneficiary  should  have  a 
power  of  sale  and  of  signing  receipts ;  but  where  a  testator 
charges  payments,  and  does  not  devise  the  estate,  or  devises  it 
in  such  manner  that  there  is  no  one  who  can  execute  the  trust, 
then  tlie  executors  should  have  an  equitable  power  of  sale  and 
of  signing  receipts,  and  that  the  depositaries  of  the  legal  title 
should  be  trustees  for  them,  and  bound  to  convey  as  they  direct ; 
but  where  the  testator  has  devised  the  estate,  and  therefore 
provided  a  hand  to  execute  the  trust,  but  the  trustee  or  devisee 
dies  in  the  testator's  lifetime,  then,  as  the  hand  to  execute  the 
trust  has  only  failed  by  the  act  of  God,  no  person  has  a  power 
of  sale  or  signing  receipts,  but  the  trust  can  only  be  executed 
by  the  court. ^  By  Lord  St.  Leonard's  act,  as  it  is  called,  exec- 
utors in  all  the  cases  before  named,  when  tlie  wills  shall  come 
into  operation  after  August  13,  1859,  may  make  sales  and  give 
valid  receipts  for  the  purchase-money .^  In  the  United  States, 
it  is  conceived  that  executors  would  have  the  power  of  selling 
by  api (lying  to  the  Court  of  Probate  for  a  license  or  decree  to 
sell  so  much  of  the  estate  as  is  necessary  to  discharge  the  pay- 
ments to  be  made  ;  and,  as  before  stated,  whenever  executors 
or  trustees  sell  under  a  license  or  decree  of  court,  the  purchaser 
need  not  look  to  the  application  of  tlie  purchase-money.^ 
Where  there  is  a  devise  of  an  estate,  subject  to  tlie  payment  of 
charges,  the  devisee,  with  the  concurrence  of  the  executors, 
declaring  that  all  charges  have  been  paid,  may  sell  for  his  own 
private  purposes,  and  give  a  good  and  valid  title  to  the  pur- 
chaser, without  any  obligation  on  the  purchaser  to  make  further 
investigations  as  to  the  application  of  the  purchase-money.* 

§  806.  A  trust  for  sale  is  a  joint  office,  and  the  receipt  must 
be  signed  by  all  the  trustees  who  act ;  but  it  need  not  be  signed 

'  Lewin,  34S,  349. 

-  'J-2  &  'J3  Vict.  c.  3r>.  ^  j^j^fg^  §  79,^. 

*  Storry  v.  Walsli,  18  Beav.  659  ;  Howard  v.  Challers,  2  Dr.  &  Siii.  236. 


440  TEUSTEES'   KECEIPTS.  [CHAP.  XXVI. 

by  one  who  disclaims.^  Where  a  power  is  given  to  trustees  to 
sign  receipts  and  exonerate  the  purchaser  from  seeing  to  the 
application  of  the  purchase-money,  the  receipt  must  be  signed 
by  all  the  trustees,  even  if  one  of  them  has  conveyed  his  inter- 
est in  the  trust  estate  to  his  cotrustees  ;  for  the  power  to  sign 
the  receipt  was  a  i^ersonal  confidence  that  did  not  pass  with 
the  estate.^  So  the  trustees  cannot  delegate  their  power  of 
signing  receipts  to  exonerate  the  purchaser ;  as,  if  they  convey 
the  estate  to  another  upon  the  same  trusts  upon  which  they 
held,  a  purchaser  could  not  safely  pay  the  purchase-money  to 
such  grantee  without  seeing  to  its  application.  The  case  of 
Hardwick  v.  Mynd  seems  to  uphold  a  different  rule  ;  but  it 
■would  not  be  safe  to  act  upon  it.^  But  if  the  trustees  sign  the 
receipt,  the  purchaser  need  not  pay  the  money  to  them  person- 
ally :  he  may  pay  to  any  person  properly  authorized  by  them 
to  receive  it ;  or  he  may  pay  it  as  the  trustees  direct  it  to  be 
paid  into  a  bank,  or  to  any  other  person ;  ^  yet  it  is  safer  to 
pay  to  the  trustees  personally.^  If,  in  such  case,  the  person 
authorized  to  receive  the  money  upon  the  receipts  of  the 
trustees,  misapplies  it,  the  trustees  will  be  responsible  to  the 
cestui  que  ti'ust  for  the  loss.^ 

§  807.  If  trustees  for  sale,  with  a  power  to  sign  receipts  for 
the  purchase-money,  die,  and  new  trustees  are  appointed  by  the 
court  to  execute  the  power  of  sale,  such  new  trustees  may  also 
give  valid  receipts.  But  this  is  an  exception  to  the  ordinary  rule, 
that  trustees  appointed  by  courts  do  not  take  the  special  powers 
conferred  upon  the  trustees  appointed   by  the   settlor.     The 

^  Adams  v.  Taunton,  5  Mad.  435;  Hawkins  v,  Kemp,  3  East,  410; 
Smith  V.  Wheeler,  1  Vent.  128. 

*  Crewe  v.  Dicken,  4  Ves.  97. 

3  Hardwick  v.  Mynd,  1  Anst.  109;  Braybroke  v.  Inskip,  8  Ves.  432. 

*  Hope  V.  Liddeli,  21  Beav.  202 ;  Miller  v.  Priddon,  1  De  G.,  M.  &  G. 
335;  Loek  v.  Lomas,  5  De  G.  &  Sm.  32G;  McCarogher  v.  Whieldon,  34 
Beav.  107. 

=  Pell  V  De  Winton,  2  De  G.  &  J.  13;  In  re  Fishbourne,  9  Ir.  Eq.  340. 
«  Ghost  V.  Walker,  9  Beav.  497. 


§§  806-808.]  WHO  MUST  join  in  them.  441 

exception  is  made  in  cases  of  sales,  for  the  reason  that  the 
power  of  giving  receipts  is  so  connected  with  tlie  power  of  sale 
that  it  may  be  presumed  to  be  the  intention  of  the  settlor.^ 

§  808.  A  perplexing  question  has  arisen  whether  trustees, 
who  have  a  clear  authority  given  them  to  sign  receipts,  have 
the  same  power  remaining  after  a  breach  of  the  trust.  Thus, 
if  trustees  suffer  the  property  to  pass  to  A.  by  a  breach  of  trust, 
and  A.  afterwards  passes  the  property  back  to  the  trustees, 
w^ould  the  receipt  of  the  trustees  be  a  valid  discharge  of  A.,  so 
that  he  could  not  be  called  upon  to  account  for  the  property  if 
the  trustees  again  misapplied  it  ?  If  the  property  comes  back 
to  the  trustees  in  specie,  so  that  it  is  exactly  as  if  it  had  never 
passed  out  of  their  hands,  it  would  seem  that  their  grantee 
should  not  be  further  responsible.  But  if  the  property  has 
been  converted,  and  comes  back  in  the  form  of  payment,  it 
would  seem  that  the  receipt  of  the  trustees  would  not  indemnify 
the  person  who  has  knowingly  dealt  with  the  property  by  aid- 
ing in  committing  a  breach  of  trust.^  Mere  irregularity  of 
appointment,  however,  will  not  vitiate  a  receipt :  as,  where  one 
of  two  trustees  was  irregularly  appointed,  the  receipt  of  both 
was  held  a  good  discharge.^  If  the  trust  property  is  mortgaged, 
the  trustees  may  give  receipts  for  the  difference  between  the 
amount  of  the  mortgage  and  the  purchase-money.     If  there  is 

'  Drayson  v.  Pocock,  4  Sim.  283  ;  Byam  v.  Byara,  19  Beav.  58;  Bartley 
V.  Bartley,  5  Drew.  385;  Lord  v.  Bunn,  2  Y.  &  Col.  Ch.  98. 

*  Lander  v.  Weston,  3  Drew.  389 ;  Hanson  v.  Beverle}-,  Sugd.  V.  &  P. 
848  (11th  ed.)  ;  Carver  v.  Richai'ds,  Lewin,  350.  In  Sheridan  v.  Joyce,  7 
Ir.  Eq.  118,  the  defendant  borrowed  the  trust  fund  in  breach  of  the  trust, 
not  knowing  that  it  was  trust  money.  He  afterwards  discovered  that  fact, 
and  repaid  the  money  to  the  trustee  and  took  his  receipt.  The  court  held 
that  when  defendant  discovered  that  he  held  the  trust  money  in  breach  of 
the  trust,  he  became  quasi  trustee  and  responsible  to  the  cestui  que  ti-ust  for 
the  money,  and  that  he  could  not  discharge  himself  from  his  liability  by 
paying  the  original  trustee  and  taking  his  receipt  alone. 

^  INIiller  v.  Priddon,  1  De  G.,  M.  &  G.  335.  But  see  Gosling  i'.  Carter, 
1  Coll.  650. 


442      SALE  OF  PERSONAL  PROPERTY  BY  EXECUTOR.      [CHAP.  XXVI. 

110  surplus,  the  trustees  can  convey  "without  giving  a  receipt. 
In  the  United  States,  the  forms  of  conveyance  contain  a  receipt 
of  the  purchase-money  or  consideration  ;  and,  as  deeds  must 
be  signed  by  all  the  trustees  to  whom  the  power  is  intrusted, 
the  receipt  is  signed  in  the  same  instrument.  But  if  the  deed 
or  conveyance  does  not  contain  a  receipt,  or  if  the  full  amount 
of  the  purchase-money  is  not  named  in  the  deed  as  the  consider- 
ation of  the  purchase,  a  separate  receipt  should  be  given,  signed 
by  all  the  trustees ;  otherwise  the  purchaser  would  have  no 
sufficient  discharge,  and  he  might  be  called  upon  to  account. 

§  809.  On  the  death  of  a  testator,  the  personal  estate  vests 
wholly  in  the  executor,  and  in  order  that  he  may  execute  his 
office,  the  law  permits  him,  with  or  without  the  concurrence  of 
any  coexecutor,^  to  sell  or  mortgage,^  by  actual  assignment 
or  equitable  deposit,^  with  or  without  a  power  of  sale,*  all  or 
any  part  of  the  personal  assets,  legal  or  equitable.^  He  must 
render  an  account  to  the  court ;  but  no  creditor,  legatee,  or  heir 
can  make  any  claim  to  any  of  the  personal  assets.  The  creditor 
can  only  pursue  his  legal  claim  against  the  executor  personally.^ 
The  pecuniary  or  specific  legatee  is  not  entitled  to  the  legacy, 
until  it  is  assented  to  by  the  executor;  ">  and  the  residuary  leg- 

1  Scott «.  Tyler,  2  Dick.  725;  Smith  v.  Everett,  27  Beav.  446;  Sneesby 
V.  Thorn,  7  De  G.,  M.  &  G.  399;  Fellows  v.  Mitchell,  2  Vern.  515;  Doe 
V.  Stace,  15  M.  &  W.  623;  Murrell  v.  Cox,  2  Vern.  570;  Shep.  Touch. 
484 ;  Dyer,  23  a. 

«  Ibid.;  Bonney  i\  Ridgard,  1  Cox,  145,  148;  Miles  v.  Durnford,  13 
Eng.  L.  &  Eq.  123;  2  De  G.,  M.  &  G.  641;  Mead  v.  Orrery,  3  Atk.  340; 
Andrew  v.  Wrigley,  4  Bro.  Ch.  138;  Keane  v.  Robarts,  4  Mad.  357; 
Humble  v.  Bill,  2  Vern.  446 ;  Sandars  v.  Richards,  2  Coll.  568 ;  McLeod 
v.  Drummond,  17  Ves.  154;  Haynes  v.  Forshaw,  11  Hare,  93;  Field  v. 
Schieffelin,  7  John.  Ch.  150;  Petrie  v.  Clark,  11  S.  &  R.  377;  Tyrrell  v. 
Morris,  1  Dev.  &  Bat.  Eq.  559. 

^  Ibid. ;  Ball  v.  Harris,  8  Sim.  485. 

*  Russell  V.  Plaice,  18  Beav.  21. 

^  Shaw  V.  Spencer,  100  Mass.  392 ;  McLeod  v.  Drummond,  14  Ves. 
360 ;  Nugent  v.  Giflford,  1  Atk.  463. 

*  Ibid. ;  Mead  v.  OiTcry,  3  Atk.  238.  '  Ibid. 


§§  808-810.]  IN   CASE   OF   FRAUD.  443 

atee  has  no  claim  or  lien  until  the  estate  has  been  liquidated, 
and  all  liabilities  under  the  will  have  been  settled.^  There- 
fore, upon  the  sale  of  a  chattel,  the  purchaser  has  no  concern 
as  to  the  purchase-money,  and  the  conveyance  need  not  state 
that  the  sale  is  neccessary  to  pay  debts  or  oth^r  liabilities.^ 
The  purchaser  may  rely  upon  the  person  appointed  by  the 
testator  to  liquidate  his  estate.^  If  the  executor  misapplies 
the  purchase-money,  those  defrauded  must  seek  their  remedy 
against  him,  and  not  against  the  purchaser.*  The  purchaser 
need  not  inquire  into  the  necessity  of  a  sale.^  Even  express 
notice  of  the  entire  contents  of  a  will  cannot  affect  the  purchaser 
of  a  chattel ;  for  a  purchaser  of  real  estate  under  a  power  of 
sale  to  pay  debts  is  not  bound  to  investigate  whether  there  are 
debts,  nor  to  see  to  the  application  of  the  purchase-money. 
And  as  all  personal  property  is  bound  for  the  payment  of  debts, 
a  purchaser  is  not  bound  to  know  whether  there  are  debts  or 
not,  nor  to  see  to  the  application  of  the  purchase-money.*^  Thus 
an  executor  can  sell  the  personal  assets  of  his  testator,  and 
even  chattels  specifically  devised ;  and  the  purchaser  has  no 
concern  with  the  purchase-money.*' 

§  810.  While  this  is  the  general  rule,  executors  and  pur- 
chasers cannot  collude  and  commit  frauds,  for  fraud  and  col- 
lusion vitiate  every  transaction ;  therefore,  if  there  is  fraud, 
a  purchaser  cannot  protect  himself  under  the  absolute  power 

'  Ibid. 

^  Bonncy  v.  Ridgard,  1  Cox,  148. 

=•  Ibid. 

*  Humble  v.  Bill,  2  Vern.  445;  Ewer  v.  Corbet,  2  P.  Wms.  149:  Watts 
V.  Kancie,  Totb.  77 ;  Nurton  v.  Nurton,  Toth.  77 ;  Ward  v.  Ward,  4  Ir. 
Ch.  215;  Penn.  Ins.  Co.  v.  Austen,  42  Pcnn.  St.  257. 

6  Nugent  V.  Gifford,  1  Atk.  464;  Mead  v.  Orrery,  3  Atk.  242. 

^  Keane  v.  Robarts,  4  Mad.  356 ;  Burting  i-.  Stonard,  2  P.  Wms.  150. 

'  Watts  V.  Kancie,  Toth.  77,  161 ;  Ewlt  t'.  Corbet.  2  P.  Wms.  148 ; 
Humble  v.  Bill,  2  Vern.  444  ;  1  Bro.  P.  C.  71 ;  Andrew  v.  Wrigley,  4  Bro. 
Ch.  137;  McLeod  v.  Drummond,  17  Ves.  160;  Bonney  v.  Ridgard,  1  Cox, 
147. 


444   SALE  OF  PERSONAL  PROPERTY  BY  EXECUTOR.   [CHAP.  XXVI. 

of  the  executor  to  sell.^  Thus  the  sale  of  a  chattel  cannot 
stand,  if  it  is  sold  for  a  nominal  price  only,  or  at  a  fraudulent 
undervalue,  or  for  any  collusive  purpose  ;  ^  or  if  the  purchaser 
receives  the  chattel  in  payment  of  the  executor's  own  debt  to 
him  ;  ^  or  if  the  purchaser  knows  that  the  executor  intends  to 
misapply  the  money,  and  the  sale  is  made  for  that  purpose.^ 
Nor  can  a  purchaser  buy  from  an  executor  a  chattel  specifically 
bequeathed,  if  he  has  notice  or  knowledge  that  all  debts  have 
been  paid,  and  that  such  chattel  is  not  required  for  the  pay- 
ment of  debts.''  Nor  can  the  executor  apply  the  chattels  with 
knowledge  of  the  purchaser  to  the  payment  of  a  delit  wrong- 
fully contracted  by  him  in  behalf  of  the  estate.*^      Nor  can  an 

'  Scott  V.  Tyler,  2  Dick.  725 ;  Watkins  v.  Cheek,  2  S.  &  S.  205  ;  McLeod 
V.  Drummond,  17  Ves.  154;  Hill  v.  Simpson,  7  Ves.  166;  Taner  v.  Ivie,  2 
Ves.  469 ;  Keane  v.  Robarts,  4  Mad.  357 ;  Crane  v.  Drake,  2  Vern.  616 ; 
Nugent  V.  Gifford,  1  Atk.  463;  Mead  v.  Orrery,  3  Atk.  240;  Bonney  v. 
Ridgard,  1  Cox,  147 ;  Whale  v.  Booth,  4  T.  R.  625 ;  Elliot  v.  Merryman, 
Barn.  81 ;  1  Lead.  Ca.  Eq.  77,  notes ;  Williams  v.  Branch  Bank,  7  Ala. 
906;  Dodson  v.  Simpson,  2  Rand.  294;  Williamson  v.  Morton,  2  Md.  Ch. 
94;  Wilson  v.  Doster,  7  Ired.  Eq.  231 ;  Miller  v.  Williamson,  5  Md.  219. 

-  Scott  V.  Tyler,  2  Dick.  725 ;  Ewer  v.  Corbet,  2  P.  Wms.  149 ;  Mc- 
Mullen  V.  O'Reilly,  15  Ir.  Ch.  251 ;  Drohan  v.  Drohan,  1  B.  &  B.  185 ; 
Joyner  v.  Conyers,  6  Jones,  Eq.  78. 

3  Shaw  V.  Spencer,  100  Mass.  392 ;  Andrew  v.  Wrigley,  4  Bro.  Ch.  187; 
Eland  v.  Eland,  4  M.  &  Cr.  127 ;  Miles  v.  Durnford,  13  Eng.  L.  &  Eq. 
123  ;  2  De  G.,  M.  &  G.  641 ;  Anon.  Pr.  Ch.  434 ;  Williams  v.  Branch  Bank, 
7  Ala.  906;  Dodson  v.  Simpson,  2  Rand.  294;  W^illiamson  v.  Morton,  2 
Md.  Ch.  94;  Wilson  v.  Doster,  7  Ired.  Eq.  231;  Miller  v.  Williamson,  5 
Md.  219;  Scott  v.  Tyler,  2  Dick.  712;  Hill  v.  Simpson,  7  Ves.  152;  Wat- 
kins  V.  Cheek,  2  S.  &  S.  205 ;  Keane  v.  Robarts,  4  Mad.  357 ;  Crane  v. 
Drake,  2  Vern.  616 ;  Austin  v.  Wilson,  21  Ind.  252 ;  Pendleton  v.  Fay, 
2  Paige,  202. 

*■  Watkins  v.  Cheek,  2  S.  &  S.  199;  Eland  v.  Eland,  4  M.  &  Cr.  427; 
Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  648 ;  Sacia  v.  Berthoud,  17  Barb. 
15 ;  Miller  v.  AVilliamson,  5  Md.  219  ;  AVilliarason  v.  Morton,  2  Md.  Ch. 
94 ;  Garrard  v.  Railroad  Co.  5  Casey,  154 ;  Railway  Co.  v.  Barker,  5  Casey, 
160 ;  Champlin  v.  Haight,  10  Paige,  274 ;  Shaw  v.  Spencer,  100  Mass.  387. 

*  Ewer  V.  Corbet,  2  P.  Wms.  149 ;  McMullen  v.  O'Reilly,  15  Ir.  Ch. 
251. 

«  Collinson  v.  Lister,  20  Beav.  356 ;  7  De  G.,  M.  &  G.  634 ;  Hill  v. 
Simpson,  7  Ves.  169. 


§§  810,  811.]  IN    CASE   OF   FRAUD.  445 

executor  sell  or  pledge  the  assets  to  raise  money  to  carry  on 
the  testator's  business,  though  such  business  is  carried  on  in 
pursuance  of  directions  contained  in  his  will ;  for  such  debts 
are  the  executor's  own  debts  and  not  the  debts  of  tlie  estate. 
The  executor  can  only  apply  the  special  property  devoted  to 
the  purposes  of  the  business  he  is  directed  to  carry  on.^ 

§  811.  If  the  executor  is  the  specific  or  residuary  legatee,  he 
may  sell  the  testator's  chattels  to  pay  his  own  debt,  for  as  soon 
as  the  testator's  debts  are  paid,  the  chattels  belong  to  the 
executor  as  legatee,  and  a  purchaser  is  not  bound  to  know 
whether  the  testator's  debts  are  paid  ;  ^  but  if  the  creditor 
of  the  executor  has  actual  knowledge  that  the  testator's  debts 
or  any  one  of  them  are  unpaid,  he  cannot  receive  such  assets 
in  payment  of  his  own  debts,  although  the  executor  is  residu- 
ary legatee.^  If  the  executor  is  joint  residuary  legatee,  his 
creditor  cannot  take  any  of  the  assets  in  payment  of  debts  ; 
he  cannot  take  them  from  the  executor,  qua  executor,  because 
the  executor  cannot  pay  his  own  debts  from  the  assets  of  the 
estate,  and  the  creditor  cannot  receive  the  assets  from  him, 
qua  legatee,  for  the  reason  that  others  own  the  assets  with 
him  after  the  testator's  debts  are  paid ;  *  the  purchaser  in  such 
case  must  not  rely  upon  the  representations  of  the  executor, 
but  he  is  bound  to  examine  the  will.^  Where  a  creditor  re- 
ceives assets  from  an  executor  in  payment,  knowing  that  such 
assets  belong  to  the  executor  only  as  executor,  a  suspicion  of 
fraud  at  once  arises  ;  but  if  an  executor  applies  for  a  loan, 

'  McNeille  v.  Acton,  2  Eq.  R.  21. 

=*  Taylor  v.  Hawkins,  8  Ves.  209;  Nugent  v.  Gifford,  1  Atk.  463;  4 
Bro.  Ch.  136 ;  Storry  v.  Walsh,  18  Beav.  559 ;  Mead  v.  Orrery,  3  Atk. 
235;  McLeod  v.  Drummoiid,  17  Ves.  163;  Whale  u.  Booth,  4  T.  11.  625, 
note  (a)  ;  Bedford  v.  Woodman,  4  Ves.  40,  n. 

3  Ibid. 

*  Bonney  v.  Ridgard,  1  Cox,  145;  Hill  v.  Simpson,  7  Ves.  152,  170; 
Haynes  v.  Forshaw,  11  Hare,  93. 

°  Hill  V.  Simpson,  7  Ves.  152,  170. 


446      SALE  OF  PERSONAL  PROPERTY  BY  EXECUTOR.      [CHAP.  XXVI. 

and  the  party  applied  to  parts  with  his  money  on  security  of 
the  assets,  there  is  no  presumption  of  fraud.  Therefore,  if  an 
executor  sells  or  mortgages  personal  assets  for  ready  money, 
or  money  to  be  advanced,  the  dealing  prima  facie  is  in  due 
course  of  administration,  but  'prima  facie  only ;  for  if  there 
is  affirmative  evidence  that  the  purchaser  or  mortgagee  had 
notice  that  the  money  was  to  be  used  for  some  purpose 
other  than  in  the  settlement  of  the  estate,  the  court  will  re- 
gard the  transaction  as  fraudulent,  and  will  not  allow  it  to 
stand. ^ 

§  812.  In  the  United  States,  bonds  are  required  of  both 
executors  and  administrators,  for  the  protection  of  the  estate 
and  the  parties  interested  ;  but  neither  such  bonds,  nor  a 
judgment  upon  them,  vest  the  assets  in  the  executor  or  admin- 
istrator in  his  own  right.^  But  it  is  conceived,  where  there 
are  no  statutes  to  the  contrary,  that  executors  and  administra- 
tors may  sell  the  personal  assets,  acting  in  good  faith,  and 
receive  the  purchase-money,  and  length  of  time  will  not  affect 
their  right.  As  personal  assets  go  to  the  personal  representa- 
tives, if  the  executor  or  administrator  cannot  sell  and  receive 
the  purchase-money,  who  can  ?  ^  An  executor  has  no  power 
until  he  has  proved  the  will  and  given  bonds  ;  until  then  he 
can  neither  sell  the  assets,  nor  make  a  valid  contract  binding 
upon  the  estate,  nor  receive  the  purchase-money.* 

»  Ante,  §  224;  McLeod  ».  Drummond,  14  Ves.  362;  17  Ves.  155;  Miles 
V.  Durnford.  2  De  G.,  M.  &  G.  641;  Scott  v.  Tyler,  2  Dick.  172;  Keane 
V.  Robarts,  4  Mad.  358 ;  Pendleton  v.  Fay,  2  Paige,  202. 

'  Atkinson  v.  Atkinson,  8  Allen,  15;  Barker  v.  Barker,  14  Wis. 
131. 

8  Stroughill  V.  Anstey,  1  De  G.,  M.  &  G.  654;  Ewer  v.  Corbet,  2  P. 
Wms.  148;  Court  v.  Jeflfery,  1  S.  &  S.  105;  Orrock  v.  Binney,  Jac.  523; 
Pierce  v.  Scott,  1  Y.  &  Col.  257 ;  Forbes  v.  Peacock,  11  Sim.  152 ;  Wil- 
liams V.  Massey,  15  Ir.  Ch.  68 ;  Lay  v.  Duckett,  1  Cr.  &  Ph.  305  ;  Field  v. 
Schieffelin,  7  John.  Cb.  150 ;  Petrie  v.  Clark,  1  S.  &  R.  377. 

*  Newton  v.  Metropolitan  Rail.  Co.  1  Dr.  &  Sm.  583 ;  Luscomb  v.  Bal- 
lard, 5  Gray,  403. 


§§  811-814.]       EXECUTORS   AND    ADMINISTRATORS.  417 

§  813.  An  agent  of  an  executor  or  administrator  or  of  a 
trustee  is  accountable  only  to  his  principal,  therefore  a  broker 
or  other  agent  employed  by  an  executor  cannot  refuse  to  pay 
over  money  to  his  principal,  because  it  may  be  misapplied  ; 
but  if  such  agent  receives  any  benefit  from  the  breach  of  the 
trust  he  will  be  responsible  for  the  property  to  the  party  enti- 
tled to  the  beneficial  interest. ^ 

§  814.  A  trustee  may  generally  sell  the  personal  property 
belonging  to  his  trust  estate,  especially  if  he  have  authority 
to  change  the  securities,  or  vary  the  investments ;  and,  if  he 
sells  the  personal  property  and  receives  the  purchase-money 
in  good  faith,  the  purchaser  will  take  a  good  title,  and  will  be 
protected  from  loss,  although  the  trustee  afterwards  misapplies 
the  money.  If  it  appears  to  the  purchaser  that  he  is  purchas- 
ing trust  property,  he  will  be  put  upon  no  inquiry,  except  to 
ascertain  whether  the  trustee  has  power  to  change  or  vary  the 
securities.^  If  the  instrument  of  trust  is  silent  upon  the 
power  of  varying  the  securities,  it  is  to  be  determined  upon 
the  whole  scope  and  purpose  of  the  trust,  whether  the  trustee 
has,  in  fact,  the  power  to  dispose  of  the  property.  If  it  ap- 
pears to  the  purchaser  in  any  way,  either  from  words  upon 
the  face  of  the  securities,  or  by  any  other  form  of  notice,  either 
actual  or  constructive,  that  the  sale  is  made  in  breach  of  the 
trust,  or  for  the  purpose  of  misapplying  the  money,  or  to  secure 
a  private  debt  of  the  trustee,  the  purchaser  will  be  accountable 
to  the  cestui  que  trust,  or  other  person  entitled  to  call  for  the 
property,  and  he  must  account  for  all  the  damages  which  have 
arisen  from  his  concurrence  in  the  breach  of  the  trust  and 
the  misapplication  of   the  money .'^      Of   course,  if  there  are 

'  Pannel  v.  Hurley,  2  Coll.  241 ;  Bodenham  v.  Hoskyns,  2  De  G.,  M.  & 
G.  241  ;  Bennett  v.  Merritt,  6  Jones,  Eq.  263. 

2  Ante,  §  225. 

'  Ante,  §§  800,  809-813 ;  post,  §§  828-843  ;  Sturtevant  v.  Jaques,  14 
Allen,  523;  Bancroft  v.  Cousen,  13  Allen,  50;  Trull  v.  Trull,  13  Allen, 
407 ;  Bingham  v.  Stewart,  13  Min.   106 ;  Pratt  v.  Beaupre,  13  Min.  187. 


448   SALE  OP  PERSONAL  PROPERTY  BY  EXECUTOR.   [CHAP.  XXVI. 

no  indications  of  fraud,  and  no  circumstances  that  lead  to  a 
suspicion  that  the  purchaser  is  dealing  with  trust  property,  he 

See  Leitch  v.  Wells,  48  Barb.  637  ;  48  N.  Y.  597  ;  Ashton  v.  Atlantic  Bank, 
3  Allen,  219.  In  Sbaw  v.  Spencer,  100  Mass.  382,  stock  standing  in 
the  name  of  a  person  as  "  trustee"  was  pledged  to  secure  the  payment  of  a 
private  debt.  A  bill  in  equity  was  brought  by  a  person  beneficially  interested 
in  the  stock.  The  case  was  most  elaborately  argued  by  able  counsel,  and 
as  the  law  was  veiy  fully  discussed  and  stated  by  the  court,  Foster,  J.,  the 
opinion  is  given  here  in  place  of  a  more  full  discussion  in  the  text :  — 

"  Under  the  circumstances  disclosed  in  the  evidence,  it  was  a  flagrant 
breach  of  trust  and  a  criminal  fraud  to  transfer  the  certificates  of  stock 
to  Spencer,  Vila,  &  Co.  They  were  the  property  of  the  plaintiff,  who  is 
entitled  to  reclaim  them  from  any  one  but  a  bona  Jide  holder  for  value 
without  notice.  Charles  Mellen,  a  member  of  the  firm  of  Mellen,  Ward,  & 
Co.,  as  collateral  security  for  a  debt  due  from  that  firm  to  Spencer,  Vila, 
&  Co.,  handed  to  them  two  certificates  of  stock  in  the  Calumet  Mining  Com- 
pany for  one  thousand  shares  each,  standing  in  the  name  of  another  mem- 
ber of  that  firm,  namely,  '  E.  Carter,  trustee,'  and  by  him  transferred  in 
blank.  Spencer,  Vila,  &  Co.  received  the  certificates  thus  indorsed  in  blank 
with  the  name  of  E.  Carter,  trustee,  for  a  valuable  and  adequate  considera- 
tion, without  other  or  any  defect  in  title  than  such  as  the  law  may  impute 
from  the  word  '  trustee '  in  the  body  of  the  certificates  and  after  the  signa- 
ture of  Carter  upon  the  blank  transfers. 

"It  is  clear  that  a  certificate  of  stock  transferred  in  blank  is  not  a  negotia- 
ble instrument.  Sewall  v.  Boston  Water  Power  Co.  4  Allen,  282.  Each 
of  these  certificates  is  expressed  on  its  face  to  be  '  transferrible  only  on  the 
books  of  the  company  by  the  holder  hereof  in  person,  or  by  a  conveyance  in 
writing  recorded  in  said  books,  and  surrender  of  this  certificate.'  No  com- 
mercial usage  can  give  to  such  an  instrument  the  attributes  of  negotiability. 
However  many  intermediate  hands  it  may  pass  through,  whoever  would  ob- 
tain a  new  certificate  in  his  own  name  must  fill  out  the  blanks,  as  they  were 
filled  in  the  present  instance,  so  as  to  derive  title  to  himself  directly  from 
the  last  recorded  stockholder,  who  is  the  only  recognized  and  legal  owner 
of  the  shares. 

"It  cannot  possibly  be  material  whether  the  manual  delivery  of  the  certifi- 
cates was  by  Mellen  or  by  Carter  himself.  Unless  the  word  '  trustee '  may 
be  i-egarded  as  mere  descriptio  personce  and  rejected  as  a  nullity,  there  was 
plain  and  actual  notice  of  the  existence  of  a  trust  of  some  description.  A 
trust  as  to  personalty  or  choses  in  action  need  not  be  expressed  in  writing, 
but  may  be  established  by  parol.  And  that  the  mere  use  of  the  word 
'  trustee '  in  the  assignment  of  a  mortgage  and  note  imports  the  existence 
of  a  trust,  and  gives  notice  thereof  to  all  into  whose  hands  the  instrument 
comes,  has  been  expressly  decided  by  tiiis  court.  Sturtevant  v.  Jaques,  14 
Allen,  623.     See  also  Bancroft  v.  Cousen,  13  Allen,  50,  and  Trull  v.  Trull, 


§  814.]  EXECUTORS    AND   ADMINISTRATORS.  449 

is  put  upon  no  inquiry.^  The  same  rules  apply  to  all  persons 
holding  fiduciary  relations  to  others,  or  holding  property  for 

Ibid.  407.  It  is  insisted,  on  behalf  of  the  defendants,  that,  even  if  there  was 
actual  notice  of  the  existence  of  a  trust,  there  was  no  notice  of  its  character, 
and  that  the  trust  might  have  been  such  as  to  authorize  the  transfer  which 
was  made  by  Carter.  But,  in  our  opinion,  the  simple  answer  to  this  posi- 
tion is,  tliat,  where  one  known  to  be  a  trustee  is  found  pledging  that  which 
is  known  to  be  trust  property,  to  secure  a  debt  due  from  a  firm  of  which  he 
is  a  member,  the  act  is  one  prima  facie  unauthorized  and  unlawful ;  and  it 
is  the  duty  of  him  who  takes  such  security  to  ascertain  whether  the  trustee 
has  a  right  to  give  it.  The  appropriation  of  corporate  stock  held  in  trust, 
as  collateral  security,  for  the  trustee's  own  debt,  or  a  debt  which  he  owes 
jointly  with  others,  is  a  transaction  so  far  beyond  the  ordinary  scope  of  a 
trustee's  authority  and  out  of  the  common  course  of  business  as  to  be  in 
itself  a  suspicious  circumstance,  imposing  upon  the  creditor  the  duty  of  in- 
quiry. This  would  hardly  be  controverted  in  a  case  where  the  stock  was 
held  by  'A.  B.,  trustee  for  C.  D.'  But  the  effect  of  the  word  'trustee' 
alone  is  the  same.  It  means  trustee  for  some  one  whose  name  is  not  dis- 
closed ;  and  there  is  no  greater  reason  for  assuming  that  a  trustee  is  author- 
ized to  pledge  for  his  own  debt  the  property  of  an  unnamed  cestui  que  trust, 
than  the  property  of  one  whose  name  is  known.  In  either  case  it  is  highly 
improbable  that  the  right  to  do  so  exists.  The  apparent  diflference  between 
the  two  springs  from  the  erroneous  assumption,  that  the  word  '  trustee ' 
alone  has  no  meaning  or  legal  effect. 

"Inasmuch  as  such  an  act  of  pledging  property  is  lyrima  facie  unlawful, 
there  would  be  little  hardship  in  imposing  on  the  party  who  takes  the  secu- 
rity, not  only  the  duty  of  inquiry,  but  the  burden  of  ascertaining  the  actual 
facts,  at  his  peril.  Where  a  partner  assumes  to  give,  for  his  own  private 
debt,  the  note  of  his  firm,  the  creditor  who  takes  it  must  show  that  it  was 
given  with  the  assent  of  the  other  partners  ;  because  it  is  an  apparent  misuse 
of  the  name  of  the  firm  and  prima  facie  evidence  of  fraud.  Eastman  v. 
Cooper,  15  Pick.  290.  But  we  need  not  go  to  that  length  in  deciding  the 
present  case.  Notice  of  the  existence  of  a  trust  is  by  all  the  authorities 
held  to  impose  the  duty  of  inquiry  as  to  its  character  and  limitations.  And 
whatever  is  sufficient  to  put  a  person  of  ordinary  prudence  upon  inquiry,  is 
constructive  notice  of  every  thing  to  which  that  inquiry  might  have  led.  The 
objection  that  in  the  present  case  the  only  persons  of  wliom  inquiry  could 
have  been  made  were  Mellen  and  Carter,  who  committed  the  breach  of 
trust,  is  sufliciently  answered  by  the  words  of  Sir  John  Romilly,  Master  of 
the  Rolls,  in  a  recent  and  leading  case :  '  With  respect  to  the  argument 
that  it  was  unnecessary  to  make  any  inquiry,  because  it  must  have  led  to  no 


'  Leach  v.  Ausbacker,  55  Penn.  St.  85. 

29 


450      SALE  OF  PERSONAL  PROPERTY  BY  EXECUTOR.       [CHAP.  XXVI. 

the  use  and  benefit  of  others  ;  thus  creditors  of  a  partnership 
cannot  receive  partnership  assets  in  payment  of  the  private 
debts  of  one  of  the  partners.^ 

results/  he  says,  '  I  think  it  impossible  to  admit  the  validity  of  this  excuse. 
I  concur  in  the  doctrine  of  Jones  v.  Smith,  1  Hare,  55,  that  a  false  answer, 
or  a  reasonable  answer,  given  to  an  inquiry  made,  may  dispense  with  the 
necessity  of  further  inquiry;  but  I  think  it  impossible  beforehand  to  come 
to  the  conclusion,  that  a  false  answer  would  have  been  given,  which  would 
have  precluded  the  necessity  of  further  inquiry.  A  more  dangerous  doctrine 
could  not  be  laid  down,  nor  one  involving  a  more  unsatisfactory  inquiry  ; 
namely,  a  hypothetical  inquiry  as  to  what  A.  would  have  said  if  B.  had  said 
something  other  than  what  he  did  say.'  Jones  v.  Williams,  2-t  Beav.  62. 
These  remarks  also  explain  the  cases,  cited  by  the  defendants,  of  Buttrick 
V.  Holden,  13  Met.  355,  and  Calais  Steamboat  Co.  v.  Van  Pelt,  2  Black, 
377.  In  each  of  these  cases  the  party  did  made  inquiry,  and  relied  upon  the 
answers  received,  which  were  of  a  character  calculated  to  put  hiui  off  his 
guard. 

"The  case  of  Ashton  v.  Atlantic  Bank,  3  Allen,  217,  is  not  in  conflict 
with  these  views.  It  does  not  proceed  on  the  ground  that  there  was  no  duty 
to  inquire,  but  that,  upon  inquiry  and  examination  of  the  will  creating  the 
trust,  it  would  have  appeared  that  the  trustee  might  have  the  right  to  use 
the  trust  funds  as  he  did.  He  raised  money  upon  the  stocks  by  a  discount 
of  his  own  note  with  them  as  collateral ;  and  the  court  said  that  it  might 
have  been  incident  to  his  duties  '  to  discount  the  trust  funds  for  the  sake 
of  making  a  permanent  investment,'  or  '  the  purchaser  might  reasonably 
assume  that  the  money  was  wanted  to  discharge  a  liability  incurred  under  the 
will.  Such  a  case  was  well  warranted  by  the  will  creating  the  trust.'  In 
short,  the  court  came  to  the  conclusion,  that  the  act  of  the  trustee  was  in 
itself  lawful  in  that  particular  case,  and  that  his  fraud  consisted  only  in  the 
misuse  of  the  money  when  obtained.  If  this  was  true,  of  course  the  pur- 
chaser was  not  bound  to  see  to  the  application  of  the  purchase-money. 

"Hutchins  V.  State  Bank,  12  Met.  4:21,  was  the  case  of  a  sale  of  shares  of 
bank  stock  by  an  executrix.  It  is  the  established  rule  of  equity,  that  '  pur- 
chases from  executors  of  the  personal  property  of  their  testator  are  ordi- 
narily valid,  notwithstanding  it  may  be  affected  with  some  peculiar  trust  or 
equity  in  the  hands  of  the  executor ;  for  the  purchaser  cannot  be  presumed 
to  know  that  the  sale  may  not  be  required  in  order  to  discharge  the  debts  of 


1  Hoxie  V.  Carr,  1  Sumn.  193;  Tillinghast  v.  Champlln,  4  R.  I.  173, 
213;  Pipkin  v.  Casey,  13  Mo.  347  ;  Dyer  v.  Clark,  5  Met.  580  ;  Topley  v. 
Butterfield,  1  Met.  515;  Hertell  v.  Bogert,  9  Paige,  59;  Polk  v.  Robinson, 
7  Ir.  Eq.  231 ;  Bond  v.  Ziegler,  1  Kelly,  324. 


§§  814-815.]        EXECUTORS   AND    ADMINISTRATORS.  451 

§  815.  Wherever  in  the  preceding  cases  there  is  fraud  or 
suspicion  of  fraud,  the  transaction  may  be  investigated  and 

the  testator,  to  which  they  are  legally  liable  before  all  other  claims.  But  if 
the  purchaser  knows  that  the  executor  is  converting  the  estate  into  money 
for  an  unlawful  purpose,  the  purchase  will  be  set  aside.'  Smith  on  Eq.  tit.  1, 
c.  iv.  10.  '  Where  an  executor  disposes  of  or  pledges  his  testator's  assets, 
in  payment  of,  or  as  security  for,  a  debt  of  his  own,  the  person  to  whom 
they  are  disposed  of  or  pledged,  will  take  them  subject  to  the  claims  ol 
creditors  and  legatees.'  Elliot  v.  Merrynian,  1  Lead.  Cas.  in  Eq.  89  ;  Hill 
V.  Simpson,  7  Ves.  152.  The  same  doctrine  was  held  by  Chancellor  Kent, 
in  1823,  in  Field  v.  Sohieffelin,  7  Johns.  Ch.  150,  who,  upon  a  review  of  all 
the  cases  down  to  the  time  of  that  decision,  thus  sums  up  the  result :  '  The 
great  difHculty  has  been  to  determine  how  far  the  purchaser  dealt  at  his 
peril,  when  he  knew,  from  the  very  face  of  the  proceeding,  that  the  executor 
was  applying  the  assets  to  his  own  private  purposes,  as  the  payment  of  his 
own  debt.  The  later  and  the  better  doctrine  is,  that  in  such  a  case  he  does 
buy  at  his  peril.'  Chief  Justice  Gibson,  in  Petrie  v.  Clark,  US.  &  R. 
377,  expressly  announces  the  doctrine,  '  that  an  executor's  applying  the 
assets  in  payment  of  his  own  debt  is  of  itself  a  circumstance  of  suspicion, 
which  ought  to  put  the  purchasing  creditor  uj)on  inquiry  as  to  the  propriety 
of  the  transaction.' 

"  The  rule  was  thus  laid  down,  in  1801,  in  the  House  of  Lords :  '  Where 
an  executor  parts  with  any  portion  of  the  assets  of  the  testator,  under  such 
circumstances  as  that  the  purchaser  must  be  reasonably  taken  to  know  that 
they  were  sold,  not  for  the  benefit  of  the  estate,  but  for  the  executor's  own 
profit,  the  result  is,  that  the  purchaser  holds  the  assets  as  if  he  were  himself, 
in  respect  of  those  assets,  the  executor.'  Walker  v.  Taylor,  21  Law  Times 
(n.  s.),  845.     See  also  2  Iledfield  on  Wills,  c.  viii.  §  32. 

"  The  power  of  disposition  over  a  testator's  assets,  which  an  executor  has, 
is  as  extensive  as  that  of  a  trustee,  and  the  conversion  of  the  testator's  per- 
sonal estate  into  money  is  within  the  ordinary  line  of  an  executor's  duty. 
Consequently  the  authorities  which  have  been  cited  as  to  the  liability  of 
those  dealing  with  executors  are  fully  applicable  to  the  case  of  one  who 
takes  trust  property  from  a  trustee  as  security  for  his  private  indebtedness. 

"  The  fiict  that  it  is  usual  for  dealers  in  stock  to  take  certificates  with 
blank  transfers  upon  them,  and  to  fill  them  up  with  the  names  of  purchasers, 
was  wholly  immaterial.  Such  a  practice,  as  we  have  already  observed,  does 
not  make  the  shares  negotiable,  and  the  purchaser  whose  name  is  written 
into  the  transfer  must  always  derive  his  title  immediately  and  solely  from  the 
stockholder  of  record.  The  point  is  not  made  by  the  plaintilf,  that  a  transfer 
in  blank  is  out  of  the  usual  course  of  business,  or  a  suspicious  circumstance; 
so  that  evidence  of  usage  was  not  requisite  to  repel  such  an  inference. 

**  The  foct  that  it  is  common  to  issue  certificates  of  stock  in  the  name  of 


452   SALE  OF  PERSONAL  PROPERTY  BY  EXECUTOR.   [CHAP.  XXVI. 

impeaclied  by  creditors,^  or  by  specific,^  residuary ,3  and  pecun- 
iary legatees,  if  they  are  injured  in  their  rights.     But  the  court 

one  as  trustee,  when  no  trust  actually  exists,  has  no  legal  bearing  on  the 
decision  of  the  present  case.  The  rules  of  law  are  presumed  to  be  known 
by  all  men  ;  and  they  must  govern  themselves  accordingly.  The  law  holds 
that  the  insertion  of  the  word  '  trustee  '  after  the  name  of  a  stockholder,  does 
indicate  and  give  notice  of  a  trust.  No  one  is  at  liberty  to  disregard  such 
notice,  and  to  abstain  from  inquiry  for  the  reason  that  a  trust  is  frequently 
simulated  or  pretended  when  it  really  does  not  exist.  The  whole  force  of 
this  offer  of  evidence  is  addressed  to  the  question  whether  the  word  '  trustee ' 
alone  has  any  significance,  and  does  not  amount  to  notice  of  the  existence  of 
a  trust.  But  this  has  been  heretofore  decided,  and  is  no  longer  an  open 
question  in  this  commonwealth.     Sturtevant  v.  Jaques,  14  Allen,  523. 

"  The  circumstance  that  stock  certificates,  issued  in  the  name  of  one  as 
trustee,  and  by  him  transferred  in  blank,  are  constantly  bought  and  sold  in 
the  market  without  inquiry,  is  likewise  unavailing.  A  usage  to  disregard 
one's  legal  duty,  to  be  ignorant  of  a  rule  of  law,  and  to  act  as  if  it  did  not 
exist,  can  have  no  standing  in  the  courts. 

"  It  is  to  be  borne  in  mind  that  the  question  under  discussion  is  not 
whether  one  holding  as  trustee  may  sell  it  in  the  market,  and  pass  a  good 
title  to  the  purchaser.  We  do  not  intimate  that  this  cannot  be  done.  The 
distinction  between  a  sale  and  a  pledge  of  trust  property  is  palpable  and 
manifest.  Nor  is  the  present  question  whether  a  trustee  may  borrow  money 
on  the  pledge  of  stock  held  in  trust.  We  do  not  decide  that  such  a  trans- 
action may  not,  under  some  circumstances,  be  sustained.  These  questions 
are  left  to  be  adjudged  when  they  arise.  The  point  now  decided  is,  that  one 
holding  stock  as  trustee  has  prima  facie  no  right  to  pledge  it  to  secure  his 
own  debt  growing  out  of  an  independent  transaction ;  and  that  whoever 
takes  it  as  security  for  such  a  debt,  without  inquiry,  does  so  at  his  peril. 
All  the  proffers  of  evidence,  taken  together,  fall  short  of  showing  any  usage 
to  do  this  ;  and  no  evidence  of  usage  could  legalize  such  conduct.  Because 
Spencer,  Vila,  &  Co.  took  these  certificates  of  stock  to  secure  an  antecedent 
debt  from  Mellen,  Ward,  &  Co.  to  them,  with  notice  that  they  were  held  in 
trust,  and  made  no  inquiry  as  to  Carter's  authority  to  use  trust  property  for 
such  a  purpose,  they  cannot  retain  the  security  against  the  equitable  owner 
of  the  stock,  when  it  appears  that  Carter  in  making  the  jjledge  was  guilty  of 
a  fraudulent  breach  of  trust." 

In  Jaudon  v.  National  City  Bank,  8  Blatchf.  -iSl,  it  appeared  that  a  trus- 


1  Crane  v.  Drake,  2  Vern.  616 ;  Mead  v.  Orrery,  3  Atk.  238 ;  Nugent 
V.  Giffbrd,  1  Atk.  463 ;  Anon,  cited  Pr.  Ch.  434. 

2  Scott  V.  Tyler,  2  Dick.  712;  Humble  v.  Bill,  2  Vern.  444. 

3  McLeod  V.  Drummond,  17  Ves.  161;  Mead  v.  Orrery,  3  Atk.  235; 
Burting  v.  Stonard.  2  P.  Wms.  150. 


§  815.]  «  EXECUTOES    AND    ADMINISTRATORS.  453 

will  not  reopen  transactions  that  have  Ijeen  allowed  to  sleep  for 
twenty  years  or  more.^ 

tee  borrowed  money  for  his  own  private  purposes,  and  pledged  stock,  which 
the  lender  knew  that  he  held  in  trust  as  collateral.  The  cestui  que  trust 
afterwards  called  upon  the  lender  for  the  stock.  The  court  held  that  he  was 
entitled  to  reclaim  it,  as  the  lender  of  the  money  knew  that  the  trustee  was 
borrowing  the  money  for  his  own  private  purposes,  and  that  the  sale  of  the 
stock  was  not  made  in  the  regular  course  of  business.  And  the  court  cited 
McLeod  V.  Drummond,  17  Ves.  152;  Field  v.  SchiefFelin,  7  John.  Ch.  150; 
Lowry  v.  Commercial  and  Farmers'  Bank,  Ch.  J.  Taney's  Decis.  310;  Pen- 
dleton V.  Fay,  2  Paige,  202 ;  Bayard  v.  Farmers'  &  IMechanics'  Bank.  52 
Penn.  St.  222 ;  Baker  v.  Bliss,  39  N.  Y.  70,  76 ;  Carr  v.  Hilton,  1  Curtis, 
C.  C.  390;  and  the  above  case  of  Shaw  v.  Spencer.  The  cause  was  carried 
to  the  Supreme  Court  at  Washington,  where  the  decision  of  the  court  was 
affirmed.     Duncan  v.  Jaudon,  15  Wall.  115. 

'  Hill  V.  Simpson,  7  Ves.  152 ;  McLeod  v.  Drummond,  17  Ves.  169. 


454  RIGHTS    OF   CESTUIS    QUE   TRUST.     •  [CHAP.  XXVII. 


CHAPTER   XXYII. 

RIGHTS    AND   REMEDIES   OF   THE    CESTUIS   QUE  TRUST  IN  RELATION 
TO   THE   TRUST   PROPERTY. 

§  816.  Right  of  cestuis  que  trust  to  an  injunction. 

§  817.  Right  to  the  removal  of  the  trustees. 

§  818.  Where  a  receiver  may  be  appointed. 

§  819.  Where  a  receiver  will  not  be  appointed. 

§  820.  Where  a  receiver  will  be  discharged. 

§  821.  Trustees  must  furnish  clear  accounts  to  the  cestuis  que  trust. 
§§  822,  82.3.   Cestuis  que  trust  have  the  right  to  the  production  of  books  of  accounts  and 
documents. 

§  824.  The  fund  may  be  paid  into  court  upon  suit  of  cestuis  que  trust. 

§  825.  Within  what  time  it  must  be  paid  in. 

§  826.  Upon  what  state  of  facts  it  will  be  ordered  to  be  paid  in. 

§  827.  A  case  for  payment  into  court  must  be  clearly  stated  in  plaintiff's  bill,  and  not 
denied  in  the  answer. 

§  828.    Cestuis  que  trust  may  follow  the  trust  fund  into  the  hands  of  third  persons. 
§§  829,  830.  When  a  purchaser  is  protected  and  when  not. 

§  831.   Cfioses  in  action  may  be  followed. 

§  832.  Where  a  borrower  of  the  trust  fund  has  notice. 
§§  833,  834.  Notice  of  doubtful  equities. 
§§  835,  836.   Cestuis  que  trust  may  follow  the  trust  fund  into  other  propertj'  in  the  hands 

of  the  trustees. 
§§  837,  838.  Where  trust  property  is  mixed  with  a  trustee's  own  property. 

§  839.  Parol  evidence  admissible  to  trace  and  identifj'  the  fund. 

§  840.  Statute  of  limitations  does  not  apply. 

§  841.  Evidence  of  the  identity  of  the  fund. 

§  842.  Lien  in  case  the  trust  fund  is  a  part  only  of  an  estate. 

§  843.  Personal  liability  of  the  trustee  for  a  breach  of  trust  and  the  remedy. 

§  844.   Cestuis  que  trust  may  compel  trustee  to  replace  the  property. 

§  845.  Trustee  must  make  up  all  losses  from  his  neglect. 

§  846.  Third  persons  who  benefit  or  advise  a  breach  of  trust  may  be  made  responsible. 

§  847.  Not  material  that  trustees  have  not  benefited  by  a  breach  of  the  trust. 

§  848.  Liability  of  cotrustees  and  cestuis  que  trust  concurring  in  a  breach  of  trust. 

§  849.  Cestuis  que  trust  concurring  in  breach  of  trust  are  estopped. 

§  850.   Cestuis  que  trust  cau  have  no  relief  if  they  acquiesce  in  a  breach  of  trust. 

§  851.    Cestuis  que  trust  may  release  or  waive  a  breach  of  trust.     Conditions  of  a  valid 
release. 

§  852.  Other  waj's  in  which  a  breach  of  trust  may  be  discharged. 

§  853.  Parties  interested  alone  can  release  a  breach  of  trust. 

§  816.  The  cestui  que  trust  may  compel  the  trustee  to  the 
observance  and  performance  of  his  duty  ;  and  if  there  is  rea 


§816.]  INJUNCTION  —  REMOVAL  —  RECEIVERS.  455 

son  to  suppose,  or  the  court  is  satisfied,  that  the  trustee  is 
about  to  [)rocccd  in  an  unauthorized  manner,  an  injunction  will 
be  granted  to  restrain  the  improper  exercise  of  the  legal  power 
in  the  trustee,^  and  such  other  orders  may  be  made  as  will  best 
secure  the  proper  administration  of  the  trusts.^  It  is  well 
established,  that  the  cestui  que  trust  is  entitled  to  an  injunction, 
where  the  intended  act,  if  done  by  the  trustee,  will  be  irremedi- 
able;' and  so  any  person  interested  in  the  estate  in  common 
with  others  may,  in  behalf  of  himself  and  the  others,  procure 
proper  orders  for  the  security  of  the  property.'^  A  person 
whose  interest  is  a  contingent  remainder  may  have  a  bill 
against  the  trustee,  tenant  for  life,  for-  the  protection  of  the 
estate.^  So  a  mortgagor  in  a  power-of-sale  mortgage,  or  other 
person  interested  in  the  equity  of  redemption,  may  jjrocurc  an 
injunction  restraining  a  sale  by  the  mortgagee  after  a  tender  to 
him  of  the  principal  and  interest  due  ;  and  a  purchaser  with 
notice  is  not  protected,  although  there  is  a  clause  exempting 
him  from  seeing  to  the  validity  of  the  sale.^  A  purchaser  with 
notice  of  the  trust  from  a  trustee  would  be  subject  to  the  same 
liabilities  as  the  trustee.  An  injunction  may  be  had  against 
the  disposition  of  the  fund  by  an  insolvent  trustee,"  or  against 
a  bankrupt  trustee;^  but  if  the  trustee  or  executor  is  merely 

^  Balls  V.  Strutt,  1  Hare,  146  ;  Corporation  of  Ludlow  v.  Greenhouse, 
1  Bl.  N.  R.  57;  In  re  Cbertsey  Market,  6  Trice,  279,  281;  Att'y-Gen.  v. 
Foundling  Hosp.  2  Ves.  Jr.  42. 

2  Toppan  V.  Ricomio,  1  Green,  Ch.  89. 

8  Anon.  G  Mad.  10 ;  AVebb  v.  Shaftesbury,  7  Ves.  487  ;  Reeve  v.  Par- 
kins, J.  &W.  390;  MiUigan  v.  Mitchel,  1  M.  &  K.  416;  Att'y-Gen.  v. 
Liverpool,  1  M.  &  C.  210;  Vann  v.  Barnett,  2  Bro.  Ch.  157.  The  con- 
trary opinion,  expressed  in  Pechel  v.  Fowler,  2  Anst.  549,  has  not  been 
followed. 

*  Scott  V.  Becher,  4  Price,  346. 

*  Clarke  v.  Devereaux,  1  S.  C.  172. 
^  Jenkins  v.  Jones,  2  Gif.  99. 

'  Mansfield  v.  Shaw,  3  Mad.  100;  Taylor  v.  Allen,  2  Atk.  213  ;  Scott  v. 
Becher,  4  Price,  346. 

*  Gladdon  v.  Stoneman,  1  Mad.  143,  n. 


456  RIGHTS   OF   CESTUIS   QUE   TRUST.        [CHAP.  XXVII. 

poor,  the  court  will  not  interfere. ^  An  injunction  has  been 
granted  against  the  administration  of  a  trust  by  an  executor  of 
bad  character,  drunken  habits,  and  great  poverty .^  Stock- 
holders in  banks  or  other  corporations  may  have  injunctions 
against  the  directors  of  the  corporation,  to  prevent  breaches  of 
the  trust.^  But  the  inhabitants  of  a  town  or  city  cannot  have 
an  injunction  against  the  town  or  its  officers,  in  the  absence  of 
an  enabling  statute. 

§  817.  Courts  may  also  remove  the  trustees  from  office,  and 
appoint  others  in  their  place,  to  prevent  a  threatened  breach  of 
trust,  or  any  danger  to  the  trust  fund  ;  ^  but  if  the  conduct  of 
the  trustee  proceeds  from  a  misunderstanding  of  his  duty,  or 
from  mistake,  or  a  long-continued  practice  by  himself  and 
other  trustees,  and  not  from  any  dishonest,  selfish,  or  im- 
proper motives,  and  the  safety  of  the  property  is  not  imper- 
illed, the  court  generally  will  not  remove  him.^ 

§  818.  Proceedings  for  the  removal  of  trustees  and  the  ap- 
pointment of  others  require  some  little  time,  as  trustees  have 
the  right  to  file  answers  to  the  charges  against  them,  and  to  a 
regular  and  full  hearing ;  and,  as  the  cestuis  que  trust  are  en- 
titled to  have  the  fund  properly  protected  and  managed  in  the 
mean  time,  the  court  may  appoint  receivers.^  Thus,  if  it  can 
be  shown  that  the  trustees  have  been  guilty  of  misconduct, 

'  Howard  v.  Papera,  1  Mad.  143 ;  Hathornthwaite  v.  Russell,  2  Atk. 
126 ;  Barn.  334. 

^  Everett  v.  Prythergch,  12  Sim.  365. 

^  Ante,  §  207 ;  Dodge  v.  Woolsey,  18  How.  331 ;  Mechanics'  Bank  v. 
De  Bolt,  18  How.  330. 

*  Ante,  §  275,  and  cases  cited ;  Parsons  v.  Winslow,  6  Mass.  169  ;  Dixon 
V.  Smith,  2  Rich.  Eq.  131;  Johnson's  App,  9  Barr,  416;  Lesley  v.  Losley, 
1  Duv.  117. 

*  Ante,  §  276,  and  cases  cited;  2  Story,  Eq.  Jur.  §  1289. 

6  Beverley  v.  Brooke,  4  Grat.  208;  Calhoun  v.  King,  5  Ala.  523; 
Jones  V.  Dougherty,  10  Ga.  273;  Edie  v.  Applegate,  14  lo.  273. 


§§  816-819.]      INJUNCTION  —  REMOVAL  —  RECEIVERS.  457 

waste,  or  an  improper  disposition  of  the  estate  ;  ^  or  that  they 
have  an  undue  leaning  towards  one  of  two  conflicting  inter- 
ests ;  2  or  that  the  fund  is  in  danger  from  their  insolvency  or 
bankruptcy  ;  ^  or  that  one  of  the  trustees  has  been  guilty  of 
misconduct,  and  the  other  trustees  desire  a  receiver  ;  ^  or  that 
they  are  incapacitated  from  acting ;  ^  or  that  they  are  of  bad 
character,  drunken  habits,  and  great  poverty  ;  *^  or  that  the 
trustees  are  out  of  the  jurisdiction  ;'  or  that  they  so  disagree 
among  themselves  that  the  estate  cannot  be  properly  adminis- 
tered,^ receivers  will  be  appointed ;  and  so  where  the  trustee 
was  a  married  woman,  and  her  husband  was  out  of  the  juris- 
diction.^ In  all  cases,  the  court  will  appoint  a  receiver  if  the 
trustees  and  cestuis  que  ti-ust  agree  or  concur  in  the  appoint- 
ment.^"    But  the  court  will  require  security. ^^ 

§  819.  The  court  will  not  appoint  a  receiver,  and  take  the 
administration  of  the  trust  out  of  the  hands  of  the  trustees  upon 
slight  grounds, ^^  It  is  not  a  sufficient  ground  of  itself  for  a 
receiver,  that  one  trustee  has  disclaimed,  another  is  inactive, 

1  Anon.  12  Ves.  5 ;  Middleton  v.  Dodswell,  13  Ves.  266 ;  Howard 
V.  Papera,  1  Mad.  U2 ;  Richards  v.  Perkins,  3  Y.  &  Col.  299  ;  Evans  v. 
Coventry,  5  De  G.,  M.  &  G.  911 ;  Att>Gen.  v.  Boyer,  3  Ves.  714. 

2  Talbot  V.  Scott,  -4  K.  &  J.  139. 

8  Scott  V.  Beclier,  4  Price,  346 ;  Gladdon  v.  Stoneman,  1  Mad.  143,  n.  ; 
Langley  v.  Hawk,  5  Mad.  46;  Mansfield  v.  Shaw,  3  Mad.  lUO;  Havers  v. 
Havers,  Barn.  23;  Middleton  v.  Dodswell,  13  Ves.  266;  Anon.  12  Ves.  4; 
Steele  v.  Cobham,  L.  R.  1  Ch.  325. 

*  Middleton  v.  Dodswell,  13  Ves.  266;  Tidd  v.  Lister,  o  :\Iad.  429. 

*  Bainbrigge  v.  Blair,  3  Beav.  481. 

6  Everett  ti.  Prythergch,  12  Sim.  367. 

'  Noad  V.  Backhouse,  2  Y.  &  Col.  Ch.  529;  Smith  v.  Smith,  10  Hare, 
App.  71 ;  Tidd  v.  Lister,  5  Mad.  429. 

*  Day  V.  Croft,  Lewin  on  Trusts,  731 ;  Swale  v.  Swale,  22  Beav.  584. 

9  Taylor  v.  Allen,  2  Atk.  213. 

'"  Brodie  v.  Barry,  3  Mer.  695,  and  case  cited ;  Browell  v.  Reid,  1  Hare, 
435. 

"  Manners  v.  Furze,  11  Beav.  30;  Tylee  v.  Tylee,  17  Beav.  583. 

'2  Barkley  v.  Roay,  2  Hare,  306;  Middleton  v.  Dodswell,  13  Ves.  268; 
Ogden  V.  Kip,  6  John.  Ch.  160. 


458  RIGHTS   OF   CESTUIS    QUE  TRUST.         [CHAP.  XXVII. 

and  another  has  gone  abroad,  if  there  is  still  a  trustee  capable 
and  willing  to  execute  the  trust ;  ^  nor  that  the  trustees  are 
poor,  if  they  are  not  insolvent  ;^  nor  that  trustees  for  sale  have 
let  the  purchaser  into  possession  before  the  purchase-money 
is  paid.3  There  must  be  good  reason  to  fear  that  the  property 
will  not  be  forthcoming  at  the  end  of  the  litigation,  or  the  court 
will  not  appoint  a  receiver.* 

§  820.  A  receiver  is  appointed  for  the  benefit  of  all  parties 
interested,  and  therefore  he  will  not  be  discharged  upon  the 
application  of  one  party,  although  he  is  the  party  that  applied 
for  the  appointment.^  But  the  expenses  of  the  receivership, 
together  with  the  commissions  of  the  receivers,  must  be  paid  out 
of  the  income  of  the  tenant  for  life.^  For  this  reason,  the  court 
will  appoint  new  trustees  and  discharge  the  receiver  as  soon  as 
it  can  be  done  in  the  regular  progress  of  the  suit,  to  relieve  the 
tenant  for  life  from  all  extraordinary  or  unnecessary  burdens." 

§  820  a.  Courts  in  equity  also  have  jurisdiction  to  decree  a 
sale  of  the  trust  property,  if  the  trust  fund  can  thereby  be 
administered  more  beneficially,  and  in  accordance  with  the 
intention  of  the  donor .^ 

§  821.  A  trustee  or  executor  is  bound  to  keep  clear,  distinct, 
and  accurate  accounts.  If  he  does  not,  all  presumptions  are 
against  him,  and  all  obscurities  and  doubts  are  to  be  taken 
adversely  to  him.^     If  he  enters  these  accounts  in  his  private 

»  Browell  v.  Reid,  1  Hare,  434 ;  Tait  v.  Jenkins,  1  Y.  &  Col.  Ch.  492. 

*  Anon.  12  Ves.  4;  Howard  v.  Papera,  6  Mad.  142;  Hatbornthwaite  v. 
Russell,  2  Atk.  126;  Havers  w.  Havers,  Barn.  23. 

3  Browell  v.  Reid,  1  Hare,  434. 

*  Poythress  v.  Poythress,  16  Ga.  406 ;  Ogden  v.  Kip,  6  John.  Ch.  160. 

*  Bainbrigge  v.  Blair,  3  Beav.  423. 

*  Shore  «.  Shore,  4  Drew.  510. 

^  Bainbrigge  v.  Blair,  3  Beav.  421;  Poole  v.  Franks,  1  Moll.  80. 
"  Alemany  v.  Wensinger,  40  Cal.  288. 
»  Blauvelt  v.  Ackerman,  23  N.  J.  Eq.  493. 


§§  819-822.]      EIGHT   TO    SEE   BOOKS   AND    PAPERS.  459 

books,  he  is  bound  to  produce  the  books,  although  such  books 
contain  his  private  accounts;^  and  even  if  he  enters  the  ac- 
counts of  the  trust  in  the  books  of  the  firm  of  which  lie  is  a 
partner,  the  books  must  be  produced.^  The  cestuis  que  trust 
may  enforce  these  rights  against  all  persons  acting  for,  or 
claiming  by,  through,  or  under  the  trustee  with  notice,  or  tak- 
ing without  value.3  But  where  an  agent  was  employed  to 
manage  an  estate,  and  he  entered  the  accounts  in  the  same 
books  in  which  he  kept  the  accounts  of  other  estates  which  he 
managed  for  other  persons,  the  court  declined  to  order  the 
production  of  the  books  in  the  absence  of  such  persons.'* 

§  822.  Where  the  relation  of  trustees  and  cestuis  que  trust  is 
admitted  or  clearly  established,^  the  cestuis  que.  trust,  as  the 
true  owners  of  the  fund,  have  the  right  to  the  production  and 
inspection  of  all  the  documents  and  papers  relating  to  it. 
Where  the  trustee  has  taken  the  opinion  of  counsel  for  his 
guidance  as  trustee,  the  cestuis  que  trust  have  the  right  to  see 
it,  as  it  must  be  paid  for  out  of  their  income.^  As  all  the 
cestuis  que  trust  have  an  interest  in  the  documents,  they  must 
all  be  represented,  directly  or  indirectly,  in  court,  before  a  final 

'  Freeman  v.  Fairlee,  3  Mer.  43  ;  Ilopkinson  v.  Burghly,  L.  R.  2  Ch.  447. 
The  cestui  que  (rust  bas  a  right  to  call  upon  tiiu  trustee  lor  accurate  infor- 
mation.    Springett  v.  Dashwood,  2  Gif.  521 ;  Walker  v.  Symonds,  3  Swans 
58;   Newton  v.   Askew,  11  Beav.  152;  Gray  v.  Haig,   20  Beav.  152,  n. 
Burrows  v.  Wells,  5  De  G.,   M.   &  G.  253;  Clare  v.  Ormond,  Jac.  120 
Pearse  v.  Green,   1  J.  &  W.   140;  Hardwick  v.  Vernon,   14  Ves.    510 
White  V.   Lincoln,  8  Ves.   3G3 ;  Turner  v.  Corner,  5  Beav.  515;  Anon 
4  Mad.  473;  Kemp  v.  Burr,  4  Gif.  348;  Wrae  v.  Seed,  4  Gif.  425.     If  a 
trustee  stand  by  and  see  his  cotrustee  render  improper  accounts,   he  will 
make  himself   guilty   of  misrepresentation.     Ilorton    v.    Brocklehurst,    29 
Beav.  504.     And  so  legatees  have  a  right  to  proper  explanations  of  the 
condition  of  the  estate  of  a  testator.     Ottley  v.  Gibbs,  8  Beav.  602. 

«  Ihid. 

'  Smith  V.  Barnes,  L.  R.  1  Eq.  65. 

*  Airy  v.  Hall,  12  Jur.  1043. 

^  Wynne  v.  Ilumberstone,  27  Beav.  "421. 

'  Ibid. ;  Devaynes  v.  Robinson,  21  Beav.  42 ;  Talbot  v.  Marshfield, 
2  Dr.  &  Sm.  285. 


460  RIGHTS    OF   CESTUIS   QUE   TRUST.         [CHAP.  XXVir. 

disposition  can  be  made  of  the  papers ;  ^  but  parties  to  bills, 
notes,  bonds,  or  mortgages  due  to  the  trust  estate,  need  not  be 
before  the  court,  if  they  are  not  cestuis  que  trustP-  So  trustees 
have  the  right  to  see  the  books  and  papers  relating  to  the  trust 
in  the  hands  of  their  cotrustees.^ 

§  823.  But  so  long  as  the  relation  of  trustee  and  cestuis  que 
trust  is  not  admitted,  or  is  not  established,  the  cestuis  que  trust 
are  strangers,  and  are  not  entitled  to  inspect  the  documents  ;  * 
and  where  litigation  is  pending  or  contemplated  between  the 
trustee  and  cestuis  que  trust,  and  the  trustee  takes  the  opinion 
of  counsel  in  relation  to  his  rights  against  them,  they  have  no 
right  to  see  the  opinion.^ 

§  824.  An  order  to  pay  the  fund  into  court  may  be  made  at 
the  final  hearing,  although  it  was  not  made  upon  an  interloc- 
utory application ;  ^  and  such  order  may  be  made  at  the  final 
hearing  without  notice  or  motion,'''  and  it  may  be  made,  although 
a  distringas  or  injunction  has  been  previously  obtained.^ 

§  825.  If  the  fund  in  the  hands  of  the  trustee  consists  of 
money,  he  will  be  ordered  to  pay  it  into  court  forthwith ;  if  it 
consists  of  stocks,  an  immediate  transfer  will  be  ordered  ;  if  of 
mortgages  or  other  property,  a  reasonable  time,  according  to 
the  circumstances,  will  be  allowed  in  the  order  for  the  payment 
into  court.^     If  a  trustee  should  dispose  of  the  fund  during  the 

'  Buo;den  v.  Tylee,  21  Beav.  545. 

2  Gough  V.  Offley,  5  De  G.  &  Sm.  653. 

3  Sloo  V.  Law,  3  Blatch.  459. 

*  Wynne  v.  Humberstone,  27  Beav.  421. 

=  Talbot  V.  Marshfield,  2  Dr.  &  Sm.  285;  Brown  v.  Oakshott,  12  Beav. 
252 ;  Devaynes  v.  Robinson,  20  Beav.  42. 

^  Governesses'  Institution  v.  Rusbridger,  18  Beav.  467. 
'  Isaacs  V.  WeatLerstone,  10  Hare,  App.  30. 

8  Lewin  on  Trusts,  730. 

9  Vigrass  v.  Binfield,  3  Mad.  62;  Hinde  v.  Blake,  4  Beav.  597;  Roy  v. 
Gibbon,  4  Hare,  &b\  Wyatt  v.  Sharratt,  3  Beav.  498;  Score  v.  Ford,  7 
Beav.  333. 


§§  822-826.]  PAYMENT  INTO   comiT.  461 

pendency  of  proceedings  for  payment  of  the  fund  into  court,  he 
would  be  punished  as  for  contempt  of  court.^ 

§  826.  If  a  plaintiff  is  clearly  entitled  to  a  fund;^  or  if  he 
has  a  certain  partial  interest  in  a  fund,  and  all  the  other  parties 
are  before  the  court  ;^  or  if  the  other  parties  interested  are  not 
necessary  parties  to  the  suit ;  '^  or  if  he  has  a  contingent  inter- 
est, and  there  is  no  doubt  that  the  defendant  is  trustee  for  some 
one,^  an  order  will  be  entered  that  the  money  be  paid  into  court, 
if  any  misconduct  is  shown  on  the  part  of  the  trustee.'^  And, 
so  where  the  plaintiff  is  entitled  to  a  share  of  a  fund  which  is 
clearly  divisible  into  proportions.'^  Such  orders  were  at  one 
time  entered  as  a  matter  of  course  upon  the  facts  appearing  in 
the  answer,  and  Vice-Chancellor  Kindcrsley  said  that  he  ad- 
hered to  that  practice.^  But  Lord  Langdale  said  that  the  order 
would  not  be  made,  unless  the  misconduct  of  the  trustee  endan- 

'  Wartrani  v.  Wartram,  Taney,  362. 

«  Freeman  v.  Fairlee,  3  Mer.  29;  Dubless  v.  Flint,  4  M.  &  C.  502; 
McHardy  v.  Hitchcock,  11  Beav.  77. 

3  Ross  V.  Ross,  12  Beav.  89;  Whitmarsh  v.  Robertson,  4  Beav.  26; 
Bartlett  v.  Bartlett,  4  Hare,  631. 

*  Wilton  V.  Hill,  2  De  G.,  M.  &  G.  807;  Hammond  v.  Walker,  3  Jur. 
(n.  s.)  686 ;  Marryatt  v.  Marryatt,  23  L.  J.  (n.  s.)  Ch.  876 ;  Lewellin  v. 
Cobbold,  1  Sm.  &  Gif.  572. 

*  Dolder  v.  Bank  of  England,   10  Ves.   355;  Whitmore  v.  Turquand, 

I  John.  &  H.  296;  Dublin  v.  Flint,  4  M.  &  C.  502;  McHardy  y.  Hitchcock, 

II  Beav.  73. 

«  Ross  V.  Ross,  12  Beav.  89;  Rothwell  v.  Rothwell,  2  S.  &  S.  217; 
Richardson  v.  Bank  of  England,  4  M.  &  C.  184;  Meyer  v.  Montriou, 
4  Beav.  343;  Hinde  v.  Blake,  4  Beav.  597;  Johnson  v.  Aston,  1  S.  &  S. 
73 ;  Freeman  v.  Fairlee,  3  Mer.  39 ;  Vigrass  v.  Binfield,  3  Mad.  62 ;  Collis 
V.  Collis,  2  Sim.  366;  Wyatt  v.  Shurratt,  3  Beav.  499  ;  Widdowson  v.  Duck, 
3  Mer.  494;  Contce  v.  Dawson,  2  Bland.  264;  Hosack  v.  Rogers,  9  Paige, 
468;  Bartlett  v.  Bartlett,  4  Hare,  631  ;  Nokes  v.  Seppings,  2  Piiil.  19; 
Boschetti  v.  Power,  8  Beav.  98 ;  Marryatt  v.  Marryatt,  23  L.  J.  Ch.  876 ; 
Clogett  V.  Hill,  9  G.  &  J.  81;  Bourne  v.  Mole,  8  Beav.  177;  Futter  v. 
Jackson,  6  Beav.  424. 

'  Rogers  v.  Rogers,  1  Anst.  174 ;  Hammond  v.  Walker,  3  Jur.  (n.  s.) 
686 ;  Score  v.  Ford,  7  Beav.  336. 

»  Robertson  v.  Scott,  1  W.  N.  114. 


462  RIGHTS   OF   CESTUIS   QUE   TRUST.         [CHAP.  XXVII. 

gered  the  safety  of  the  trust  fund.^  So  trustees  who  have  a 
discretionary  power  over  the  fund  will  not  be  ordered  to  pay  it 
into  court,  if  it  appear  that  they  iijtend  to  exercise  their  discre- 
tion in  good  faith .2 

§  827.  An  order  for  payment  into  court  will  not  be  made, 
except  upon  an  equity  clearly  stated  in  the  plaintiff's  bill, 
although  some  other  equity  may  appear  from  defendant's 
answer ;  ^  and  the  merits,  upon  which  the  prayer  or  motion  is 
made,  must  substantially  appear  in  defendant's  answer,  as  no 
evidence  aliunde  can  be  introduced  upon  the  merits ;  ^  and  so 
the  plaintiff's  interest  or  title  should  appear  in  the  answer.^ 
So  it  should  appear  in  defendant's  answer  that  he  has  received 
the  trust  fund  ;  ^  but  it  need  not  appear  that  the  trustees  actually 
have  the  money  in  their  hands  ;  for  if  they  state  that  they  have 
received  the  fund,  and  have  applied  it,  or  invested  it  in  a 
manner  not  authorized,  they  will  be  ordered  to  bring  it  into 
court.'*  Where  an  executor  admits  funds  to  have  come  to  his 
hands,  he  may  be  allowed  to  show  by  affidavit  what  debts  he 
has  paid,  and  he  will  be  ordered  to  pay  in  the  balance  only.^ 

^  Ross  V.  Ross,  12  Beav.  89. 

'^  Talbot  V.  Marshfield,  2  Dr.  &  Sm.  285. 

^  Proudfoot  V.  Hume,  4  Beav.  476. 

*  Beaumont  v.  Meredith,  8  V.  &  B.  181;  Richardson  v.  England,  4  M.- 
&  C.  171;  Dubless  v.  Flint,  4  M.  &  C.  502;  Black  v.  Creigbton,  2  Moll. 
654;  Green  v.  Pledger,  3  Hare,  171;  Boschetti  v.  Power,  8  Beav.  98; 
McTighe  V.  Dean,  7  C.  E.  Green,  81. 

5  Dubless  V.  Flint,  4  M.  &  C.  502;  McHardy  v.  Hitchcock,  11  Beav.  73 ; 
Bank  of  Turkey  v.  Ottoman  Co.  L.  R.  2  Eq.  366. 

«  Ibid. 

'  Ingle  V.  Partridge,  32  Beav.  661;  Phillipo  v.  Munnings,  2  M.  &  C. 
309 ;  Meyer  v.  Montriou,  4  Beav.  346 ;  Futter  v.  Jackson,  6  Beav.  424 ; 
Scott  I'.  Becher,  4  Price,  350 ;  Nokes  v.  Seppings,  2  Phil.  19 ;  Vigrass  v. 
Binfield,  3  Mad.  62 ;  Collis  v.  Collis,  2  Sim.  365 ;  Roy  v.  Gibbon,  4  Hare, 
65;  Wyatt  v.  Sharratt,  3  Beav.  498;  Costeker  v.  Horrox,  3  Y.  &  Col.  530; 
Hinde  v.  Blake,  4  Beav.  597 ;  Bourne  v.  Mole,  8  Beav.  177 ;  Rothwell  v. 
Rothwell,  2  S.  &  S.  217 ;  Hagell  v.  Currie,  L.  R.  2  Ch.  449. 

®  Anon.  4  Sim.  359 ;  Proudfoot  v.  Hume,  4  Beav.  476 ;  Roy  v.  Gibbon, 
4  Hare,  65. 


§§  826-828.]  MAY   FOLLOW   TRUST   FUNDS.  463 

Payment  into  coiu't  is  ordered  where  the  trustees  admit  the 
receipts  of  funds,  and  do  not  show  any  legal  discharge  ;^  but  it 
is  not  ordered  where  the  trustees  admit  facts  only  from  which 
a  liability  may  be  inferred  ;  ^  thus  if  they  admit  funds  in  their 
hands,  in  such  manner  that  it  may  be  inferred  tliat  they  ought 
to  pay  interest,  they  will  not  be  ordered  to  pay  the  interest  into 
court  until  the  final  hearing  ;  ^  but  if  they  admit  that  they  have 
received  interest,  they  may  be  ordered  to  pay  it  into  court  with 
the  fund."*  And  so  if  the  trustees  admit  that  they  owe  a  debt 
to  the  trust  estate,  they  may  be  ordered  to  pay  it  into  court  at 
once,  as  the  persons  to  receive  and  pay  the  debt  are  the  same.^ 
The  court  can  compel  the  performance  of  its  decrees  by  process 
against  the  parties  as  for  contempts.^ 

§  828.  If  the  trustees  convey  the  estate  by  a  breach  of  the 
trust,  the  cestui  que  trust  may  follow  the  estate  into  the  hands 
of  a  volunteer,  whether  he  had  notice  of  the  trust  or  not ;  ''  and 
into  the  hands  of  a  purchaser  for  value,  if  he  has  notice  of  the 
trust.^     Even  the  statute  of  limitations  does  not  apply  to  a  pur- 

»  Peacham  v.  Daw,  G  Mad.  98 ;  Richardson  v.  England,  4  M.  &  C.  174  ; 
Rothwell  V.  Rothwell,  2  S.  &  S.  217. 

^  Ibid. 

3  Wood  V.  Downes,  1  V.  &  B.  50. 

'  Ibid.;  Freeman  v.  Fairlee,  3  Mer.  43;  Rothwell  v.  Rothwell,  2  S,  &  S. 
217. 

*  Richardson  v.  Bank  of  England,  4  M.  &  C.  174 ;  White  v.  Barton,  19 
Beav.  192. 

«  Ciiew's  App.  4  Penn.  St.  247. 

'  See  ante.  §§  217,  223;  Mansell  v.  Mansell,  2  P.  Wms.  679;  Saunders 
V.  Dehew,  2  Vern.  271;  2  Freem.  123;  Langton  v.  Astrey,  2  Ch.  R.  30; 
Nels.  126;  Bell  v.  Bell,  LI.  &  G.  t.  Plunk.  50;  Pye  v.  George,  2  Salk. 
680;  1  Rep.  122  b;  Burgess  v.  Wheate,  1  Ed.  219;  Spurgeon  v.  Collier, 
1  Ed.  55 ;  Cole  v.  Moore,  Mose.  806 ;  Bourset  v.  Savage,  L.  II.  2  Eq.  134. 
But  third  parties  cannot  recjuire  a  cestui  que  trust  to  follow  the  trust  prop- 
erty into  the  hands  of  purchasers  for  their  protection.  Barr  v.  Culjbage, 
52  Mo.  404 ;  Smith  v.  Bowen,  35  N.  Y.  83;  Lyford  v.  Thurston,  16  N.  II.  399. 

»  Ibid. ;  McLeod  v.  First  Nat.  Bank,  42  Miss.  99  ;  Joor  v.  Williams,  38 
Mis.  546;  Jones  v.  Shaddock,  41  Ala.  262;  Lathrop  v.  Bampton,  31  Cal. 
17 ;  Aynesworth  v.  Halderman,  2  Duv.  655. 


464  EIGHTS   OF   CESTUIS   QUE   TRUST.         [CHAP.  XXVII. 

chaser,  taking  the  property  with  full  notice  of  the  trust,  and 
therefore  by  fraud. ^  The  purchaser  under  such  circumstances 
becomes  a  trustee,  and  liable  in  the  same  manner  as  the  person 
from  whom  he  purchased ;  for,  knowing  another's  rights  to 
the  property,  he  throws  away  his  money .^  Even  trover  may 
be  maintained  against  a  purchaser  in  breach  of  the  trust  with 
full  knowledge  of  the  trust.^  And  the  rule  applies  not  only  to 
direct  or  express  trusts,  but  also  to  all  constructive  trusts,^ 
equitable  incumbrances,^  and  liens  for  the  purchase-money.^ 
But  a  bona  fide  purchaser  for  a  valuable  consideration  without 
notice,  expressed  or  implied,  is  entitled  to  full  protection.'^ 

§  829.  If  a  purchaser  has  no  notice  of  the  trust  at  the  time, 
but  afterwards  discovers  the  trust,  and  obtains  a  conveyance 
from  the  trustee,  he  cannot  protect  himself  by  getting  in  the 
legal  estate  ;  for  this  is  not  like  getting  in  a  first  mortgage, 
which  the  mortgagees  havje  a  right  to  transfer  to  anybody.  But 
notice  of  the  trust,  before  the  conveyance,  converts  the  pur- 
chaser into  a  trustee,  and  he  cannot  protect  himself  by  another 

'  Rolfe  V.  Gregory,  11  Jur.  (sr.  s.)  98. 

^  Ante,  §  217,  and  cases  cited;  Bovey  r.  Smith,  1  Vern.  149;  Phayre  v. 
Peree,  8  Dow.  129 ;  Willougbby  v.  Willougbby,  1  T.  R.  771 ;  Verney  v. 
Carding,  cited  Joy  v.  Campbell,  1  Sch.  &  Lef.  345  ;  Flemming  v.  Page, 
Finch,  320 ;  Backhouse  v.  Middleton,  1  Ch.  Ca.  173,  20S ;  Powell  v.  Price, 
2  P.  Wins.  539 ;  Walley  v.  Walley,  1  Vern.  484 ;  Pearce  v.  Newlyn,  3 
Mad.  186 

3  Kitchen  v.  Bradford,  13  Wall.  416. 

"  Ante,  §  217,  p.  190. 

^  Daniels  v.  Davison,  16  Ves.  249;  Brooke  v.  Bulkely,  2  Ves.  498; 
Taylor  v.  Stibbert,  2  Ves.  Jr.  437  ;  Winged  v.  Lefebury,  2  Eq.  Ca.  Ab.  32 ; 
Ferrars  v.  Cherry,  2  Vern.  384 ;  Jackson's  Case,  Lane,  60 ;  Crofton  v. 
Ormsby,  2  Sch.  &  Lef.  583 ;  Kennedy  v.  Daly,  1  Sch.  &  Lef.  355. 

^  Ante,  §  239,  and  cases  cited ;  Kator  v.  Pembroke,  1  Bro.  Ch.  202 ; 
Grant  v.  Mills,  2  V.  &  B.  306 ;  Dunbar  v.  Tredennick,  2  B.  &  B.  320. 

^  Ante,  §  218,  and  cases  cited ;  Burgess  v.  Wheate,  1  Ed.  195 ;  Millard's 
Case,  2  Freem.  43 ;  Mansell  v.  Mansell,  2  P.  Wms.  681 ;  Trevor  v.  Trevor, 
1  P.  Wms.  633 ;  Harding  v.  Hardrett,  Finch,  9 ;  Cole  v.  Moore,  Mose. 
806 ;  Payne  v.  Compton,  2  Y.  &  Col.  457 ;  Thorndike  v.  Hunt,  3  De  G.  & 
J.  563. 


§§  828-831.]     MAY  FOLLOW  TRUST  FUNDS.  465 

breacli  of  the  trust.^     But  a  conveyance  may  be  recorded  after 
notice  of  the  trust.^ 

§  830.  A  purchaser  without  notice  from  a  purchaser  with 
notice  is  protected  ;  for  his  own  good  faith  is  a  defence,  and 
the  had  faith  of  the  vendor,  like  the  had  faith  of  the  original 
trustee  in  making  the  sale,  cannot  injure  an  innocent  party .^ 
So  a  purchaser  with  notice  from  a  purchaser  without  notice  is 
protected,  not  on  his  own  merit,  but  on  the  merit  of  the  inno- 
cent purchaser  ;  for,  if  such  purchaser  could  not  sell  the  estate, 
he  would  be  deprived  of  one  of  the  valuable  attributes  of  his 
property  ;  *  but  if  the  property  comes  back  to  the  defaulting 
trustee,  the  trust  will  reattach  to  it,^  and  a  similar  principle 
prevails  at  law.^  But  in  case  a  trustee  sells  an  estate  vested 
in  him  for  a  charitable  use,  the  purchaser  will  be  bound  by  the 
trust,  though  he  has  no  notice ;  and  so  of  an  innocent  pur- 
chaser from  the  first  purchaser;'  in  other  respects  purchasers 
of  estates  devoted  to  charitable  uses  are  subject  to  the  same 
rules  that  govern  the  purchase  of  other  trust  estates.^ 

§  831.  It  is  a  rule  of  law,  that  the  purchaser  of  choses  in 
action,  or  personal  property  not  transferrible  at  law,  cannot 

1  Ante^  §  218,  p.  191,  and  cases  cited ;  Bates  v.  Johnson,  1  John.  (Eng.) 
30-1;  Langton  v.  Astrey,  2  Ch.  R.  30;  Nels.  12() ;  Carter  v.  Carter,  3  K.  & 
J.  617;  Sliarpless  v.  Adams,  32  Beav.  213;  Collier  v.  McBean,  34:  Beav. 
426;  Justin  v.  Wynne,  10  Ir.  Eq.  489;   12  Ir.  Eq.  289. 

2  Dodds  V.  Hills,  2  Hem.  &  Mil.  426. 

8  Martin  v.  Joliffe,  Anib.  313 ;  Ferrars  v.  Cherry,  2  Vern.  384 ;  Pitts  v. 
Edelph,  Toth.  164 ;  Salsbury  v.  Bagott,  2  Swans.  608. 

*  Aute,  §  222,  and  cases  cited  ;  Bradwell  v.  Catchpole,  cited  Walker  v. 
Symonds,  3  Swans.  78;  JNIartin  v.  JoiilFe,  Aiiib.  313;  McQueen  v.  Fanjuar, 
11  Vcs.  478;  Andrew  v.  Wrigley,  4  Bro.  Ch.  136;  Salsbury  r.  Bagott,  2 
Swans.  608. 

^  Ante,  §  222,  and  cases  cited;  Bovey  v.  Smith,  2  Ch.  Ca.  124;  1  Vern. 
60,  81,  144;  Kennedy  v.  Daly,  1  Sch.  &  Lef.  379. 

6  Bovey  v.  Smith,  2  Ch.  Ca.  126. 

"  East  Greenstead's  Case,  Duke,  6o ;  Sutton  Colefield's  Case,  Duke,  68, 
94,  173;  CommVs  of  Char.  Dona.  v.  Wybrants,  2  Jon.  &  Lat.  194. 

s  See  Sugd.  V.  &  P.  722  (14th  cd.).' 

VOL  II.  30 


466  RIGHTS   OP   CESTUIS   QUE   TRUST.         [CHAP.  XXVII. 

take  any  other  or  different  title  than  that  held  ])y  the  vendor ; 
therefore,  if  a  trustee  sells  cJioses  in  action  and  other  personal 
property  not  transferrible,  the  cestuis  que  trust  may  follow  such 
choses  and  property  into  the  hands  of  the  purchaser,  and  charge 
him  with  the  same  equities  and  trusts  tliat  the  property  was 
subject  to  in  the  hands  of  the  trustee.^  Persons  dealing  with 
trustees  and  trust  property  must  take  notice  at  their  peril  of 
the  scope  of  the  authority  of  the  trustee.^ 

§  832.  So  if  a  trustee  loans  the  trust  fund  in  breach  of  the 
trust,  and  the  borrower  has  notice  of  the  trust  and  the  breach, 
he  becomes  a  quasi  trustee  ;  and  he  cannot  separate  the  loan 
from  the  trust,  nor  insist  that  the  statute  of  limitations,  which 
bars  a  loan  as  a  loan,  also  bars  the  remedy  for  the  trust  fund 
in  his  hands.3 

§  833.  Notice  of  doubtful  equities  has  been  the  subject  of 
much  discussion.  In  Cordwell  v.  Mackrill,  Lord  Northington 
said :  "  A  man  must  take  notice  of  a  deed  on  which  an  equity 
supported  by  precedents,  the  justice  of  which  every  oiie  ac- 
knowledges, arises,  but  not  the  mere  construction  of  words 
which  are  uncertain  in  themselves,  and  the  meaning  of  which 
often  depends  upon  their  locality."  *  Sir  W.  Grant  said ; 
"  There  may  be  such  a  doubtful  equity  that  a  purchaser  is  not 
to  be  taken  to  know  what  will  be  the  decision,  and  that  is  all 
Lord  Camden  means,  but  in  this  case  the  equity  is  clear."  ^ 
Lord  St.  Leonards  observed,  that  Cordwell  v.  Mackrill  was  of 

'  Cook  V.  Tullis,  18  Wall.  332 ;  Ord  v.  White,  3  Beav.  357 ;  Cockell  v. 
Taylor,  15  Beav.  105^  Clack  v.  Holland,  19  Beav.  262 ;  Barnard  v.  Hunter, 
2  Jur.  (n.  s.)  1213  ;  Mangles  v.  Dixon,  1  McN.  &  G.  437  ;  3  H.  L.  Ca.  702  ; 
Athenjeum,  &c.,  Soc.^.  Pooley,  3  De  G.  &  J.  294;  Gray  v.  Ulrich,  8  Kan. 
112. 

2  Owen  V.  Reed,  27  Ark.  122;  Vernon  v.  Board,  &c.,  47  Miss.  181. 

3  Ernest  v.  Croysdill,  2  De  G.,  F.  &  J.  198;  Sheridan  v.  Joyce,  7  Ir. 
Eq.  118;  McLaurin  v.  Fairly,  6  Jones  Eq.  118;  Abbott  v.  Reeves,  49 
Penn.  St.  494. 

*  Cordwell  k.  Mackrill,  2  Ed.  347 ;  Arab.  516. 
5  Parker  v.  Brooks,  9  Ves.  588. 


§§  831-834.]     MAT  FOLLOW  TRUST  FUNDS.  467 

no  great  authority,  though  decided  by  a  great  judge  ;  and  con- 
ceived the  true  rule  to  be,  that  where,  upon  the  whole  articles, 
it  is  plain  what  construction  the  court  will  put  upon  them  had 
it  been  called  upon  to  execute  them  at  the  time  they  were 
made,  they  should  be  enforced,  however  difficult  the  construc- 
tion might  be,  even  as  against  a  purchaser  with  notice  ;  but 
not  after  a  lapse  of  time,  when  there  was  any  thing  so  equivocal 
or  ambiguous  in  them  as  to  render  it  doubtful  how  they  ought 
to  be  effectuated.^ 

§  834.  Thus  the  rule,  that  "  heirs  of  the  body"  in  articles 
shall  be  construed  "  first  and  other  sons,"  was  not  established 
till  about  1720.  Lord  Hardwicke,  therefore,  said  that  notice 
of  ancient  articles,  or  articles  before  the  doctrine  was  estab- 
lished, should  not  bind  a  bo7ia  fide  purchaser?  But  notice  of 
modern  articles  will  affect  the  purchaser ;  ^  but  even  then  the 
articles  must  be  produced,  that  the  court  may  judge  of  their 
character  from  the  whole  instrument,  and  the  clearness  or 
doubtfulness  of  the  notice*  Where  a  residuary  legatee  had 
enjoyed  an  estate  for  nineteen  years,  which  had  been  mort- 
gaged to  the  testator  in  fee,  and  the  heir  of  the  testator  recov- 
ered the  land  by  ejectment,  and  mortgaged  it,  and  the  residuary 
legatee  neglected  to  assert  his  title  to  the  possession  for  nine 
years,  and  then  filed  a  bill  and  established  his  claim,  it  was 
determined  that  the  mortgagee  of  the  heir  after  the  ejectment 
was  not  called  upon  to  notice  the  right  of  the  residuary  legatee, 
for  it  was  not  that  "  clear  and  broad  equity  "  whicli  affects  a 
purchaser.^  But  where  lands  were  given  to  the  sole  and  sepa- 
rate use  of  a  married  woman,  and  the  husband  in  possession 

^  Thompson  v.  Simpson,  1  Dr.  &  War,  491. 

2  Trevor  w.  Trevor,  1  P.  Wms.  622;  Senhouse  v.  Earle,  Amb.  288; 
West  V.  Errissey,  2  P.  Wras.  3-1:9;  Warwick  v.  Warwick.  3  Atk.  291; 
Davies  v.  Davies,  4  Beav.  54 ;  Parker  v.  Brooke,  9  Ves.  587. 

=*  Ibid. 

*  Cordwell  V.  Mackrill,  Amb.  515,  2  Ed.  344. 

*  Hardy  v.  Reeves,  4  Ves.  406 ;  5  Ves.  426. 


468  RIGHTS    OF   CESTUIS   QUE   TRUST.        [CHAP.  XXYII. 

made  conveyances  in  mortgage,  it  was  held  that  the  grantees 
or  mortgagees  were  bound  to  notice  the  equitable  construction 
of  the  will,  as  a  doctrine  well  understood  ;  ^  and  the  same  rule 
applies  to  leases.^ 

§  835.  Not  only  can  the  cestuis  que  trust  follow  the  trust  prop- 
erty into  the  hands  of  third  persons,  as  herein  stated,  but  they 
can  follow  the  proceeds  of  it,  if  it  is  wrongfully  sold,  so  long  as 
the  proceeds  can  be  traced  and  identified.  It  has  been  urged, 
that,  where  the  conversion  is  in  j)ursuance  of  the  trust,  the  newly 
acquired  property  is  bound  by  the  original  equity  ;  but  where 
the  conversion  is  wrongful,  the  acquired  property  not  being  in 
a  form  consistent  with  the  trust,  the  cestuis  que  trust  are  under 
no  obligations  to  accept  it  in  place  of  the  original  property,  and 
therefore  they  must  come  in  as  creditors  of  the  trustee,  and  can- 
not assert  a  specific  lien  upon  the  substituted  property.^  But 
this  reasoning  has  been  rejected.*  Lord  Ellenborough  said,  that 
"  an  abuse  of  trust  can  confer  no  rights  on  the  party  abusing 
it,  nor  on  those  who  claim  in  privity  with  him.''  ^  And  it  may 
be  added,  that  an  abuse  of  trust  can  deprive  the  cestuis  que  trust 
of  no  rights,  so  long  as  the  property  or  its  proceeds  can  be 
traced  and  identified,  in  the  hands  of  those  who  have  full  knowl- 
edge of  all  the  equities.^ 

1  Parker  v.  Brooke,  9  Ves.  583. 

2  Coppin  V.  Fernyhough,  2  Bro.  Ch.  291. 

2  Argument  in  Taylor  v.  Plunier,  3  M.  &  S.  562. 

*  Burdett  V.  Willett,  2  Vern.  638 ;  Ryall  v.  Rolle,  1  Atk.  17 ;  Ex  ixirte 
Chion,  3  P.  Wms.  187 ;  Waite  v.  Whorwood,  2  Atk.  159  5  Ex  parte  Sayers, 
6  Ves.  169  ;  Anon.  Case,  Sel.  Ca.  Ch.  67. 

5  Taylor  v.  Plumer,  3  M.  &  S.  674. 

«  Wbitcomb  v.  Jacob,  1  Salk.  160 ;  Lane  y.  Dighton,  Amb.  -409 ;  Ryall 
V.  Ryall,  Amb.  413 ;  Balguey  v.  Hamilton,  Amb.  414 ;  Lench  v.  Lench,  10 
Ves.  519 ;  Cliedworth  v.  Edwards,  8  Ves.  46 ;  Greatly  v.  Noble,  3  Mad. 
79;  Buckeridge  v.  Glasse,  Cr.  &  Phil.  126;  Murray  v.  Pinkett,  12  CI.  & 
Fin.  784 ;  Sheridan  v.  Joyce,  1  Jon.  &  Lat.  401 ;  7  Ir.  E({.  115 ;  French  v. 
Harrison,  17  Sim.  Ill ;  Harford  v.  Lloyd,  20  Beav.  310;  Frith  v.  Cartlaud, 
2  Hem.  &  aiil.  417 ;  Lathrop  v.  Bampton,  31  Cal.  17. 


§§  834-837.]  FOLLOWING   THE   TRUST   FUNDS.  469 

§  836.  Thus  if  the  trustee  invests  the  trust  fund  or  its  pro- 
ceeds in  other  property,  the. cestui  que  trust  may  follow  the  fund 
into  the  new  investment,  so  long  as  he  can  identify  the  purchase, 
as  made  with  the  trust  property  or  its  proceeds,  although  the 
trustee  may  have  taken  the  title  in  his  own  name,  or  in  the 
name  of  any  other  person  with  notice  of  the  facts.^ 

§  837.  Lord  King  remarked,  that  "  money  had  no  ear-mark, 
insomuch  that  if  a  receiver  of  rents  should  lay  out  all  the  money 
in  the  purchase  of  land,  or  if  an  executor  should  realize  all  his 
testator's  estate  and  afterwards  die  insolvent,  a  court  of  equity 
could  not  charge  or  follow  the  land ;  "  ^  and  ])ank-notcs  and 
negotiable  bills  have  been  represented  as  possessing  the  same 
quality.^  In  reply  to  this.  Lord  Mansfield  observes :  "  It  has 
been  quaintly  said,  that  the  reason  why  money  cannot  be  fol- 
lowed is  because  it  has  no  ear-mark,  but  this  is  not  true.  The 
true  reason  is  upon  account  of  the  currency  of  it :  it  cannot  be 
recovered  after  it  has  passed  in  currency.  Thus,  in  the  case  of 
money  stolen,  the  true  owner  cannot  recover  it  after  it  has  been 
paid  away  fairly  and  honestly  upon  a  valuable  and  bona  fide 
consideration  ;  but  before  the  money  has  passed  in  currency  an 
action  may  be  brought  for  the  money  itself.  Apply  this  to  the 
case  of  a  bank-note :  an  action  may  lie  against  the  finder,  it  is 

'  Oliver  v.  Piatt,  3  IIow.  333;  Ex  parte  Montefiore,  Dc  G.  Bank.  R. 
171;  Pierce  v.  MoKeehan,  3  W.  &  S.  280;  Bonsall's  App.  1  Rawle.  274; 
Kaufman  v.  Crawford,  9  W.  &  S.  234;  Blaisdell  v.  Stevens,  16  Vt.  179; 
Turner  v.  Pettigrew,  9  Humpli.  438;  Mofifatt  v.  McDonald,  11  Humph. 
457;  Sollee  v.  Croft,  7  Rich.  Eq.  84;  Bomar  v.  MuUins,  4  Rich.  Eq.  80; 
Martin  v.  Greer,  1  Ga.  Dec.  109 ;  Garrett  v.  Garrett,  1  Strob.  Eq.  96 ; 
Cheshire  t'.  Cheshire,  3  Tred.  Eq.  569 ;  Brothers  v.  Porter,  6  B.  ]\Ion.  lOG ; 
Murray  v.  Lylburn,  2  John.  Ch.  441;  Yerger  v.  Jones,  16  How.  36; 
Georges  v.  Pye,  7  Bro.  P.  C.  221 ;  1  P.  Wms.  128;  Bush  v.  Bush,  1  Strob. 
Eq.  377 ;  Bailey  v.  Inglee,  2  Paige,  278 ;  Heth  v.  Richmond  R.R.  Co.  4 
Grat.  482 ;  Barksdale  v.  Finney,  4  Grat.  338 ;  McLeod  v.  First  Nat.  Bank, 
42  Miss.  99. 

«,  Deg  V.  Deg,  2  P.  Wms.  414. 

3  Cox  V.  Bateman,  2  Ves.  19 ;  Whitecomb  v.  Jacob,  1  Salk.  160 ;  Waite 
V.  Whorwood,  2  Atk.  159. 


470  RIGHTS   OF   CESTUIS   QUE   TRUST.        [CHAP.  XXVII. 

true,  but  not  after  it  has  been  paid  away  in  currency."  ^  And 
Lord  EUcnborough  observed,  "  the  dictum  that  money  has  no 
ear-mark  must  be  understood  as  predicated  only  of  an  undivided 
and  undistinguishable  mass  of  current  money ;  but  money  kept 
in  a  bag,  or  otherwise  kept  apart  from  other  money,  —  guineas, 
or  other  coin  marked  (if  the  fact  were  so)  for  the  purpose  of 
being  distinguished,  —  are  so  far  ear-marked  as  to  fall  within 
the  rule  which  applies  to  every  other  description  of  personal 
property  whilst  it  remains  in  the  hands  of  the  factor  or  his 
general  legal  representatives."  ^  The  only  distinction  between 
money,  notes,  bills,  and  other  chattels  appears  to  be  this,  that 
the  former,  for  the  protection  of  commerce,  cannot  be  pursued 
into  the  hands  of  a  hona  fide  holder,  to  whom  they  have  passed 
in  circulation,  while  other  chattels  can  be  recovered  even  from 
a  purchaser  for  valuable  consideration,  provided  he  did  not  buy 
them  in  market  overt.  Money ,^  notes,^  and  bills  ^  may  be  fol- 
lowed by  the  rightful  owner  when  they  have  not  been  circulated 
or  negotiated,  or  the  person  to  whom  they  so  passed  had  express 
notice  of  the  trust.^  The  only  difference  between  money  and 
notes  or  hills  is,  that  money  is  not  ear-marked,  and  therefore 
cannot  be  traced  except  under  particular  circumstances ;  but 
notes  and  bills,  from  carrying  a  number  or  date,  can  in  general 
be  identified  by  the  owner  without  difficulty.^  Thus  if  trust 
money  is  mixed  in  the  same  parcel  with  the  trustee's  own 
money,  it  may  be  said  that  the  trust  money  has  run  into  the 

1  Miller  v.  Race,  1  Burr.  457. 

2  Taylor  v.  Plumer,  3  M.  &  S.  575. 

8  Taylor  v.  Plumer,  3  M.  &  S.  575;  Miller  v.  Race,  1  Burr.  457;  How- 
ard V.  Jemmet,  3  Burr.  1369 ;  King  v.  Eggington,  1  T.  R.  370 ;  Ryall  v. 
RoUe,  1  Atk.  17?. 

4  Ibid. ;  Anon.  1  Salk.  126 ;  1  Raym.  738. 

5  Bennet  v.  Mayhew,  cited  1  Bro.  Ch.  232 ;  Caton  v.  Pembroke,  2  Bro. 
Ch.  287;  Frith  v.  Cartland,  2  Hem.  &  Mil.  417;  Ex  parte  Sayers,  5  Ves. 
169;  Cbedworth  v.  Edwards,  8  Ves.  46;  Ryall  v.  Rolle,  1  Atk.  172; 
Raphael  v.  Bank  of  England,  17  C.  B.  161. 

^  Verney  v.  Carding,  cited  Joy  v.  Campbell,  1  Sch.  &  L.  345. 
'  Ford  V.  Hopkins,  1  Salk.  283. 


§§  837-839.]  FOLLOWING   THE   TRUST   FUNDS.  471 

general  mass  and  has  become  absorbed,  and  .that  the  cestui  que 
trust  has  no  lien ;  but  such  cannot  be  the  case.  If  a  trustee 
purchases  an  estate  partly  with  his  own  money  and  partly  with 
trust  money,  it  cannot  be  predicated  that  any  particular  part  of 
the  estate  was  purchased  with  money  of  the  cestui  que  trust,  but 
he  will  have  a  lien  on  the  whole  estate  for  the  amount  of  the 
trust  fund  that  was  misemployed.^  It  follows  from  this,  that, 
although  every  identical  piece  of  coin  cannot  be  ascertained  in 
a  given  mass,  yet  there  being  so  much  trust  money  in  the  parcel, 
the  cestui  que  trust  is  entitled  to  so  much  of  it.- 

§  838.  Upon  the  same  principle,  if  the  executor  of  a  deceased 
partner  is  also  the  surviving  partner,  and  he  continues  the  de- 
ceased partner's  capital  without  authority  in  the  business,  and 
changes  the  property  many  times  over,  yet  the  court  follows  the 
trust  fund  tlirough  all  these  changes,  and  gives  the  beneficiaries 
of  the  deceased  partner's  estate  the  capital  and  all  its  proceeds 
or  gains  in  the  business  in  which  it  has  been  employed.^  So  if 
a  trustee  deposits  trust  moneys  in  bank  to  his  own  credit,  mixed 
with  other  deposits  of  his  own  money,  the  court  will  disentangle 
the  accounts,  and  give  the  cestuis  que  trust  what  belongs  to 
them.-^ 

§  839.  Parol  evidence  is  admissible  to  identify  and  follow 
trust  money,  laid  out  and  invested  in  land,  notwithstanding  the 
statute  of  frauds ;  for  in  such  case  the  trust  created  is  a.result- 
ing,  or  constructive  trust,  which  is  not  within  the  letter  or  spirit 
of  the  statute.^ 

'  Lane  v.  Dighton,  Amb.  409;  Lewis  v.  Madocks,  17  Ves.  67;  Price  v. 
Blakeiiiore,  G  Beav.  507 ;  Hopper  v.  Conycrs,  12  Jur  (n.  s.)  328. 

2  Pennell  v.  Ueffell,  4  De  G.,  M.  &  G.  3S2 ;  Ex  parle  Savers,  5  Yes. 
169  ;  Ernest  v.  Croysdill,  2  De  G.,  F.  &  J.  175  ;  Frith  v.  Cartland,  2  Hem. 
&  Mil.  417. 

'  Ante,  §  430,  and  cases  cited. 

*  Ante,  §  448  and  §  463,  and  cases  cited. 

^  See  ante;  Ryall  v.  Ryall,  Amb.  413;  Anon.  Sel.  Ch.  Ca.  67;  Lane  v. 


472  RIGHTS   OF   CESTUIS    QUE   TRUST.        [CHAP.  XXVII. 

§  840.  So  wherQ  the  trust  money  is  followed  into  the  hands 
of  a  person  who  receives  it  l)y  collusion,  or  with  express  notice 
of  the  trust,  he  cannot  plead  the  statute  of  limitations,  for  the 
reason  that  he  becomes  himself  a  trustee.^ 

§  841.  There  may  be  some  difficulty,  as  a  matter  of  fact,  in 
tracing  the  trust  property  into  purchases  made  by  trustees. 
Thus  if  a  trustee  having  money  in  his  hands  misappropriates 
the  funds,  and  afterwards  purchases  lands  in  his  own  name,  it 
may  be  difficult  to  show  that  the  land  was  purchased  with  the 
trust  money  ;  and  if  the  trust  money  or  its  proceeds  cannot  be 
traced  into  the  lands,  the  cestui  que  trust  cannot  have  a  lien 
upon  them.^  But  if  the  money  can  be  traced  through  all  its 
transformations,  the  law  is  plain ;  and  the  cestui  que  trust  can 
claim  the  land.  Parol  evidence  is  admissible  to  show  all  the 
transactions  made  with  the  trust  money .^  Thus  the  fact  that 
the  purchase-money  nearly  corresponds  with  the  trust  fund  to 
be  invested  is  important.^  So  if  by  a  check  or  other  means  it 
can  be  shown  that  the  trust  money  was  drawn  to  pay  the  pur- 
chase-money, there  can  be  no  doubt.^  If  a  trustee  make  a  sale 
of  one  estate  and  purchases  another  at  the  same  time,  or  shortly 
afterwards,  it  will  be  presumed  to  be  one  transaction,  although 
the  purchase-money  of  the  estate  purchased  was  larger  than  of 
the  estate  sold,  and  the  cestui  que  trust  will  have  a  lien  on  the 
estate  for  the  amount  of  the  trust  fund  paid  towards  the  pur- 
chase.^.   So  if  a  trustee  is  under  obligation  to  lay  out  a  sum  of 

Dighton,  Amb.  409 ;  Lench  v.  Lench,  10  Ves.  517 ;  Hopper  v.  Conyers, 
L.  R.  2  Eq.  549. 

'  Ernest  v.  Croysdill,  6  Jur.  (n.  s.)  740 ;  2  Do  G.,  F.  &  J.  175  ;  Rolfe  v. 
Gregory,  11  Jur.  (n.  s.)  97 ;  McLaurIn  V.  Fairly,  6  Jones,  375. 

=*  Kirk  V.  Webb,  Pr.  Ch.  84 ;  Perry  v.  Phelips,  4  Ves.  108 ;  Roberts  v. 
Bi'oom,  1  Harring.  57  ;  Pharis  v.  Leaehman,  20  Ala.  663. 

3  Lowden  v.  Lowden,  2  Bro.  Ch.  583. 

*  Ibid.  ;  Small  v.  Attwood,  Younge,  507. 

^  Price  V.  Blackmore,  6  Beav.  507. 

®  Price  V.  Blackmore,  6  Beav.  507;  Yerger  v.  Jones,  16  How.  36. 


§§  840-842.]       IDENTIFICATION   OF   PURCHASE-MONEY.  473 

money  in  land,  and  he  purchase  an  estate  at  a  price  correspond- 
ing with  the  sum  to  be  invested,  the  court  will  presume  that 
the  purchase  was  made  with  trust  money. ^  So  where  a  settlor 
covenanted  in  marriage  articles  to  settle  all  his  personal  estate, 
a  subsequent  purchase  of  real  estate  was  presumed,  without 
evidence,  to  be  made  upon  the  same  trusts.^  But  no  such  pre- 
sumption can  arise  when  it  appears  that  the  trustee  was  mis- 
taken in  the  nature  of  the  trust,  or  acted  under  any  different 
impression.^  So  where  a  tenant  for  life,  with  power  to  sell  and 
purchase  other  estates,  purchased  other  estates  with  borrowed 
money,  and  many  years  afterwards  sold  the  settled  estates,  and 
applied  part  of  the  proceeds  of  them  to  the  payment  of  the  bor- 
rowed money,  it  was  held  that  the  purchased  estates  were  not 
subject  to  the  trusts  of  the  settled  estates.'^  So  if  a  trustee  sells 
the  whole  inheritance  wliere  he  only  had  an  estate  in  trust  for 
the  life  of  his  wife,  and  purchases  other  estates  with  the  money, 
those  in  remainder  cannot  set  up  a  claim  to  the  purchased 
estates.  Their  rights  are  wholly  confined  to  the  original  estate, 
and  that  alone  is  affected  by  the  sale.^ 

§  842.  Where  the  trust  fund  constitutes  a  part  only  of  the 
purchase-money  of  an  estate,  the  court  usually  gives  a  lien  on 
the  land  only  for  the  amount  of  the  trust  fund  invested  and 
interest;^  but  where  the  entire  land  is  the  fruit  of  the  trust 
fund,  the  cestui  que  trust  has  an  election  to  take  the  land,  or 
the  trust  fund  and  interest.'''     In  such  case,  if  a  part  of  the 

'  Ibid. ;  Matliias  v.  Mathias,  3  Sin.  &  Gif.  252;  Anon.  Sel.  Ch.  Ca.  57. 
2  Lewis  V.  Madocks,  8  Vcs.  150 ;  17  Ves.  48. 
8  Perry  w.  Plielips,  4  Ves.  108,  IIG. 

*  Denton  v.  Davies,  18  Ves.  499. 

*  Noble  V.  Andrews,  37  Conn.  34G. 

»  Lane  v.  Digliton,  Anib.  409;  Lewis  v.  Madocks,  8  Ves.  150;  17  Ves. 
48;  Price  u.  Blackniore,  6  Beav.  107;  Scales  v.  Baker,  28  Beav.  91;  Hop- 
per V.  Conycrs,  L.  K.  2  Eq.  545. 

'  Trencli  v.  Harrison,  17  Sim.  Ill;  Taylor  r.  Plumer,  3  M.  &  S.  575. 
The  decision  in  Savage  v.  Carroll,  1  B.  &  B.  2G5,  284,  has  not  been  fol- 
lowed in  this  respect.     Murray  v.  Lylburn,  2  John.  Ch.  441;  Sollee  v.  Croft, 


474  RIGHTS   OF    CESTUrS   QUE   TRUST.        [CHAP.  XXYII. 

purchase-money  remain  unpaid,  the  cestui  que  trust  would  be 
required  to  pay  it.^  But  if  the  trust  fund  has  been  used  by  the 
trustee  to  pay  his  debts,  the  cestui  que  trust  cannot  be  subro- 
gated to  the  claims  and  securities  of  the  creditors  whose  debts 
have  been  paid.^ 

§  843.  If  the  cestui  que  trust  is  unable  to  trace  the  trust  fund 
into  the  hands  of  other  persons,  or  into  other  property  in  the 
hands  of  the  trustee,  or  if  he  elects  not  to  do  so,  he  may  pro- 
ceed against  the  trustee  personally.^  If  the  trust  property  or 
its  proceeds  cannot  be  identified,  the  cestui  que  trust  may  pro- 
ceed against  the  trustee  as  against  an  ordinary  creditor,"*  and 
it  is  said,  that  if  he  elects  to  proceed  against  the  trustee  per- 
sonally, he  cannot  also  proceed  against  the  trust  fund.^  Unless 
some  legal  debt  has  been  created  between  the  parties,  or  some 
engagement  the  non-performance  of  which  may  be  the  subject 
of  damages  at  law,  a  court  of  equity  is  the  only  tribunal  to 
which  he  can  have  recourse  for  redress.^  An  action  at  law  for 
money  had  and  received  will  not  lie  against  a  trustee  while 
the  trust  is  still  open ;  but  if  a  final  account  is  settled,  and  a 
balance  struck,  an  action  may  be  maintained."     It  has  been 

7  Rich.  Eq.  34 ;  Bonsall's  App.  1  Rawle,  274;  Kaufman  v.  Crawford,  9  W. 
&  S.  134;  Oliver  v.  Piatt,  3  How.  333 ;  Thoruton  v.  Stokill,  19  Jur.  751. 
^  Yerger  v.  Jones,  16  How.  36. 

*  Winder  v.  Diflfenderffer,  1  Bland,  198. 

3  Olivers.  Piatt,  3  How.  333;  Flagg  v.  Mann,  3  Sumn.  486;  Hawkins 
V.  Hawkins,  1  Dr.  &  Sm.  75;  Freeman  v.  Cook,  6  Ired.  Eq.  379;  Norman 
V.  Cunningham,  5  Grat.  72 ;  Roberts  v.  Mansfield,  38  Ga.  452  ;  Lathrop  v. 
Bampton,  31  Cal.  17  ;  Calhoun  v.  Burnett,  40  Miss.  59. 

*  Lathrop  v.  Bampton,  31  Cal.  17. 
^  Barker  v.  Barker,  14  Wis.  131. 

®  Hearne  v.  Hearne,  55  Me.  445;  Brooks  v.  Brooks,  11  Cush.  18; 
White  V.  Sheldon,  4  Nev.  280;  State  v.  Digges,  21  Md.  240;  Dorsey  v. 
Garey,  30  Md.  489 ;  Curtis  v.  Smith,  6  Blatch.  537. 

7  Chase  v.  Roberts,  Holt,  N.  P.  C.  501 ;  Edwards  v.  Bates,  13  L.  J. 
(n.  s.)  156;  7  M.  &  G.  590;  Dias  v.  Brunell,  24  Wend.  9 ;  McCrea  «.  Pur- 
mont,  16  Wend.  460;  New  York  Ins.  Co.  v.  Roulet,  24  Wend.  505; 
Beaches  v.  Dorwin,  12  Vt.   139;  Brown  v.  Wright,  4  Yerg.  57;  Hall  v. 


§§  842,  843.]  RIGHTS   OF    CESTUI    QUE   TRUST.  475 

said,  however,  that  an  action  on  the  case  at  law  will  lie  against 
a  trustee,  for  negligence  in  the  performance  of  his  duty^  whereby 
a  loss  happens  to  the  cestui  que  trust}  So  if  a  sum  is  set  apart 
as  income  due  to  the  cestui  que  trusty  and  the  trustee  makes  an 
express  promise  to  pay  it,  an  action  at  law  may  be  maintained.^ 
So  if  a  deposit  made  with  a  trustee  for  others  is  wrongfully 
obtained  from  the  trustee,  an  action  at  law  may  be  maintained 
for  a  return  of  the  deposit.^  In  Pennsylvania,  however, 
equitable  relief  can  be  given  in  an  action  for  money  had  and 
received,'^  and  the  same  practice  prevailed  in  Massachusetts 
before  full  equity  jurisdiction  was  given  to  the  court.^  But 
where  the  trust  is  fully  executed,  and  the  amounts  settled,  and 
there  remains  nothing  to  be  done  but  for  the  trustee  to  j^ay 
over  the  amount  to  the  cestui  que  trust,  an  action  at  law  may 
be  maintained  in  all  the  States  for  the  payment  of  the  amount 
found  due.^  This  is  in  analogy  to  the  rule  in  relation  to  suits 
between  partners.  If  the  partnership  is  wound  up  and  the 
accounts  stated,  and  a  balance  is  found  due  from  one  partner 
to  another,  it  may  be  sued  for  in  an  action  of  assumpsit ;  but 
"while  the  partnership  is  still  in  existence  no  action  at  law  can 
be  maintained  for  any  balances  supposed  to  be  due  growing  out 
of  partnership  matters  not  fully  settled  up.     The  remedies  in 

Harris,  12  Ired.  Eq.  289;  Blue  v.  Patterson,  1  Dev.  &  Bat.  Eq.  457; 
Artcher  i'.  McDuffie,  5  Barb.  147;  Dias  v.  Brunell,  24  Wend.  9;  Duval  r. 
Covenhoven,  4  Wend.  661;  Sotone  v.  Scott,  6  Lansing,  274.  A  mere 
breach  of  confidence  between  parties,  there  being  no  subsisting  trust  or 
fiduciary  relation,  will  not  entitle  a  party  to  relief  in  equity.  Ashley  v. 
Denton,  1  Lit.  86;  Prescott  v.  Ward,  10  Allen,  203;  Underhill  v.  Morgan, 
33  Conn.  105. 

>  Bennett  v.  Preston,  17  Ind.  291. 

*  Weston  V.  Barker,  12  John.  276;  Dias  v.  Brunell,  24  Wend.  9. 
3  Penobscot  R.  R.  Co.  v.  Mayo,  60  Me.  306. 

*  Martzell  v.  Stauffer,  Penn.  R.  398 ;  Aycinena  v.  Perios,  6  W.  &  S. 
243. 

5  Newhall  v.  Wheeler,  7  Mass.  198. 

«  Baker  v.  Biddle,  Baldw.  66,  142;  Jordan  v.  Jordan,  2  Car.  L.  R. 
409;  Rogers  v.  Daniel,  8  Allen,  343;  Prescott  r.  Ward,  10  Allen,  203; 
Farrelly  v.  Ladd,  10  Allen,  127;  Cotter  v.  Birchard,  13  Mich.  110. 


476  REMEDIES   OF   CESTUI   QUE   TRUST.     [CHAP.  XXVII. 

courts  of  equity  are  so  much  more  satisfactory  that  it  would  be 
much  more  convenient  to  sue  in  them,  even  though  courts  of 
common  law  had  full  jurisdiction.  Trustees  may  at  all  reason- 
able times  be  called  to  account  in  a  court  of  equity. ^ 

§  844.  If  a  trustee  disposes  of  the  trust  estate  to  a  purchaser 
for  a  valuable  consideration  without  notice,  the  cestui  que 
trust  may  compel  the  trustee  to  purchase  other  lands  of  equal 
value ;  ^  or  the  cestui  qiie  trust  may  elect  to  take  the  proceeds 
of  the  sale  with  interest ;  ^  and  where  trustees  are  directed  to 
invest  in  a  particular  stock  or  fund  and  to  accumulate  the 
income,  they  will  be  directed  to  purchase  so  much  of  tlie  same 
stock  as  the  fund  if  regularly  invested  and  accumulated  would 
have  produced.'^ 

§  845.  If  a  trustee  neglects  to  transfer  stock,°  or  if  he  neg- 
lects to  sell,  whereby  there  is  a  loss,*^  the  cestui  que  trust  can 
recover  compensation.  So  if  he  neglects  to  pay  the  premium 
upon  a  policy  of  insurance,  whereby  it  is  forfeited,'  if  he  had 
the  means  of  paying  the  premium  ;  ^  if  he  has  no  means  to  keep 
it  up,  the  court  will  order  it  to  be  sold  ;  ^  if  he  pay  the  money 
himself,  he  will  have  a  lien  on  the  policy .i°     If  trustees  neglect 

'  Dill  V.  McGehee,  34  Ga.  438. 

2  Powlett  V.  Herbert,  1  Ves.  Jr.  297;  Pocock  v.  Reddington,  3  Ves. 
794;  Flaggv.  Mann,  2  Sumn.  486;  Oliver  v.  Piatt,  3  How.  333;  Mansell 
V.  Mansell,  2  P.  Wms.  681;  Vernon  v.  Vaudry,  Barn.  303;  Byrchall  v. 
Bradford,  6  Mad.  235;  Freeman  v.  Cook,  6  Ired.  Eq.  375 ;  Norman  v. 
Cunningham,  5  Grat.  72. 

3  Att'y-Gen.  v.  East  Retford,  2  M.  &  K.  35 ;  Denton  v.  Davies,  18  Ves. 
604. 

*  Pride  v.  Fooks,  2  Beav.  430;  Byrchall  v.  Bradford,  6  Mad.  13,  235; 
ante,  §§  469,  472. 

s  Fenwick  v.  Greenwell,  10  Beav.  412.  Thus  where  a  trustee  sold  at  an 
improper  time,  he  was  held  for  the  highest  value  of  the  estate.  Melick  v. 
Voorhees,  2  N.  J.  Eq.  305. 

^  Devaynes  v.  Robinson,  24  Beav.  86. 

^  Marriott  v.  Kinnersley,  Tam.  470. 

«  Hobday  v.  Peters,  28  Beav.  603. 

9  Hill  V.  Tierney,  23  Beav.  16 ;  Beresford  v.  Beresford,  23  Beav.  16. 

">  Clack  V.  Holland,  19  Beav.  273 ;  Johnson  v.  Swire,  3  Gif.  194. 


§§  843-84G.]  RIGHTS    OF   CESTUI   QUE   TRUST.  477 

to  give  notice  of  the  assignment  to  them  of  a  rJiose  in  action, 
whereby  a  loss  happens  to  the  estate,  they  will  be  responsible.^ 
So  if  a  trustee  is  charged  with  an  imperative  power,  he  will  be 
responsible  for  any  loss  arising  from  a  neglect  to  exercise  it.^ 
If  a  trustee  neglects  his  duty  and  abandons  the  interests  of  the 
cestui  que  trust,  the  court  may  not  only  compel  the  trustee  to 
perform  his  duty,  but  it  may  give  the  cestui  que  trust  relief 
against  a  third  person ;  as  where  the  trustee  refused  or  neglected 
to  renew  a  lease,  the  cestui  que  trust  may,  upon  a  proper  bill, 
have  a  decree  for  renewal  against  the  lessor,  alleging  the  mis- 
conduct of  the  trustee.^ 

§  846.  If  a  person  assumes  to  act  as  trustee,  and  becomes 
possessed  of  the  trust  fund  and  misapplies  it,  he  cannot  pro- 
tect himself  by  showing  that  he  was  not  legally  a  trustee.* 
So  if  the  trustee  is  a  member  of  a  firm,  and  the  trust  fund  is 
invested  in  the  business  of  the  partnership,  the  firm  must 
account ;  ^  and  corporations  are  liable  if  the  trust  fund  finds 
its  way  into  their  hands.^  A  solicitor  who  is  a  trustee  will  be 
liable  to  make  good  all  losses  that  occur  from  a  breach  of  the 
trust ;  and  he  may  be  struck  from  the  rolls  of  the  court  for 
a  wilful  breach.'^  A  solicitor  who  wilfully  advises  a  breach 
of  the  trust  may  be  struck  from  the  rolls.^  If  a  trustee  em- 
bezzles the  trust  funds  that  come  to  his  hands,  he  may  be 
indicted  on  the  criminal  side  of  the  court.^     Executors  and 

^  Lewlii.  652.  ^  Luther  v.  Biancoiii,  10  Ir.  Eq.  194. 

^  iNIaloiie  V.  Goraghty,  5  Ir.  Eq.  563. 

*  llackhaiu  v.  Sid.lall,  16  Sim.  297  ;  1  McN.  &  G.  C07  ;  Pearce  v.  Poarce, 
22  Beav.  2-18;  Derbisliire  v.  Home,  3  De  G.,  M.  &G.  80;  Hope  v.  Liddell, 
21  Beav.  183;  Life  Asso.  of  Scotland  v.  Siddall,  3  De  G.,  F.  &  J.  58; 
Hennessey  v.  Beay,  33  Beav.  96. 

^  Eager  v.  Barnes,  21  Beav.  579. 

®  Att'y-Gon.  v.  Leicester,  9  Beav.  546. 

'  In  re  Cliandler,  22  Beav.  253;  In  re  Hall,  2  Jur.  (n.  s.)  633. 

«  Goodwin  V.  Gosncll,  2  Coll.  457.  Sec  Barnes  v.  Addy,  L.  R.  9  Cb. 
251. 

»  Rogina  V.  Fletcher,  Leigh  &  Cave,  C.  C.  180;  9  Cox  C.  C.  189;  31 
L.  J.  M.  C.  206;  Shaw  v.  Spencer,  100  Mass.  388. 


478  EEMEDIES   OF   CESTUI    QUE   TRUST.       [CHAP.  XXVII. 

administrators  of  a  trustee  will  be  answerable  for  a  breach 
of  trust,  though  they  may  have  distributed  the  assets  without 
notice  of  the  claim ;  but  if  the  distribution  is  made  by  order 
of  the  court,  they  will  not  be  liable  ;  ^  nor  if  the  time  limited 
for  suits  against  them  has  expired  ;  though  they  cannot  plead 
the  general  statute  of  limitations  to  a  breach  of  trust  hj  the 
testator. 

§  847.  In  awarding  compensation  to  the  cestui  que  trust  for 
a  breach  of  trust  by  the  trustee,  the  court  does  not  regard  it  as 
material  that  the  trustee  has  made  no  profit  or  advantage  out 
of  the  estate .2  If  there  is  a  breach  of  the  trust,  and  an  inev- 
itable calamity  destroys  the  property,  the  trustee  must  account 
for  it.2  If  he  acts  strictly  within  the  line  of  his  duty,  he  will 
be  responsible  for  no  loss ;  but  if  he  varies  from  his  duty,  he 
must  account  for  the  property  in  all  events.*  So  if  a  loss  hap- 
pens through  a  breach  of  the  trust  as  to  one  part  of  the  estate, 
the  trustee  cannot  set  off  against  the  loss  a  gain  that  he  has 
made  to  another  part  of  the  estate,  through  another  distinct 
and  wholly  disconnected  breach  of  trust.^      But  a  trustee  will 

'  Knatchbull  v.  Fearnhead,  3  M.  &  C.  122 ;  March  v.  Russell,  3  M.  &  C. 
31 ;  Low  V.  Carter,  1  Beav.  423 ;  Hill  v.  Gomme,  1  Beav.  540 ;  Underwood 
V.  Hatton,  5  Beav.  39;  Waller  v.  Barrett,  24  Beav.  413. 

*  Dornford  v.  Dornford,  12  Ves.  129;  Raphael  v.  Boehm,  13  Ves.  411, 
490 ;  Moons  v.  De  Bernales,  1  Russ.  305 ;  Adair  v.  Shaw,  1  Sch.  &  Lef. 
272;  Montford  v.  Cadogan,  17  Ves.  489;  Scurfield  v.  Howes,  3  Bro.  Ch. 
90;  AttV-Gen.  v.  Greenhouse,  1  Bligh,  N.  R.  57. 

'  Caffrey  v.  Darby,  6  Ves.  496;  Cocker  v.  Quayle,  1  R.  &  M.  535; 
Fyler  v.  Fyler,  3  Beav.  568  ;  Kellaway  v.  Johnson,  5  Beav.  324;  Munch  v. 
Cockerel!,  5  M.  &  C.  212 ;  Gibbons  v.  Taylor,  22  Beav.  344 ;  State  v.  Fay, 
65  N.  C.  265;  Dunn  v.  Dunn,  1  S.  C.  350;  Womack  v.  Austin,  1  S.  C.  421 ; 
Sanders  v.  Rogers,  1  S.  C.  452. 

*  Clough  V.  Bond,  3  M.  &  C.  496. 

'  Wiles  V.  Greshani,  2  Dr.  258;  Dimes  v.  Scott,  4  Russ.  195;  Fletcher 
V.  Gi-een,  33  Beav.  426  ;  Palmer  v.  Jones,  1  Vern.  144.  Nor  can  a  default- 
ing trustee  claim  any  part  of  the  estate  in  his  hands  by  demise  or  descent  or 
otherwise,  until  he  has  made  good  all  breaches  of  trust.  Jacobs  v.  Ryland, 
L.  R.  17  Eq.  341. 


§§  846-848.]  RIGHTS   OF   CESTUI    QUE   TRUST.  479 

not  be  charged  with  imaginary  or  speculative  values,^  except 
in  very  gross  cases  of  wilful  default.^  Where  lands  were 
sold  in  breach  of  trust,  it  was  held  in  one  case  that  their  value 
at  the  time  of  fding  the  bill  should  be  accounted  for  ;  ^  in  other 
cases,  their  value  at  the  time  of  the  sale  has  been  fixed  upon 
as  the  sum  to  be  accounted  for.^  But  in  no  case  will  a  trustee 
be  held  for  more  than  he  receives,  if  he  is  in  no  fault,  and  has 
committed  no  breach  of  the  trust.^ 

§  848.  If  cotrustees  are  jointly  implicated  in  a  breach  of 
trust,  the  cestui  que  trust  may  have  a  decree  against  them 
jointly,  but  he  may  take  an  execution  against  any  bne  of  them 
separately,^  or  he  may  levy  an  execution  on  the  property  of 
one,  as  each  one  is  liable  for  the  whole  amount ; '  but  where 
a  trustee  accepted  the  trust  on  the  condition  that  he  should 
not  be  liable  for  more  than  he  received,  he  was  not  held  liable 
for  a  loss  by  his  cotrustee.^  Although  each  one  may  be  com- 
pelled to  pay  the  whole,  yet  if  he  pays  the  whole  he  may  have 
contribution  from  the  others  who  are  implicated  in  the  breach 
of  the  trust ;  ^  and  if  the  one  paying  the  whole  has  a  legacy 

1  Ilarnard  v.  Webster,  Sel.  Ca.  Ch.  53. 

*  Pybus  V.  Smith,  1  Ves.  Jr.  193;  Palmer  v.  Jones,  1  Vern.  IH. 

8  Hart  V.  Ten  Eyck,  2  John.  Ch.  62. 

■*  Norman  v.  Cunningham,  5  Grat.  64;  Ames  v.  Downing,  1  Bradf.  325; 
Heth  V.  lliclimond  R.R.  Co.  4  Grat.  482;  Johnson  v.  Lewis,  2  Strob.  Eq. 
157;  and  see  Johnson  v.  Richey,  4  How.  (Miss.)  233;  llainsford  v.  Rains- 
ford,  Rice  Eq.  3G9. 

°  Staats  V.  Bingen,  1  Vroom,  181. 

«  Ex  parte  Shakeshaft,  3  Bro.  Ch.  197;  Walker  v.  Symonds,  3  Swans. 
74;  AttV-Gen.  v.  Wilson,  1  Cr.  &  Phil.  28;  Taylor  v.  Tabrum,  6  Sim. 
281;  Fletcher  v.  Green,  33  Beav.  426;  Ex  parte  Angle,  Barn.  425;  In  re 
Chertsey  INIarket,  6  Price,  278. 

■'  Wilson  V.  Moore,  1  xAI.  &  K.  14G ;  Lyse  v.  Kingdom,  1  Coll.  188; 
Richardson  v.  Jenkins,  1  Dr.  477 ;  AUeyne  v.  Darcy,  4  Ir.  Eq.  206  ;  Jen- 
kins V.  Robertson,  1  Eq.  R.  123;  Rehden  v.  Wesley,  29  Beav.  215. 

»  Birls  V.  Betty,  6  Mad.  90. 

9  Lockhart  v.  Reilly,  1  De  G.  &  J.  464;  Priestman  v.  Tindall,  24  Beav. 
244;  Lingard  v.  Bromley,  1  V.  &  B.  114;  Tarleton  v.  Hornby,!  Y.  &  Col. 


480  CESTUI   QUE   TRUST   MAY   CONCUR.       [CHAP.  XXVII. 

in  his  hands  belonging  to  his  cotrustee,  he  may  hold  the  leg- 
acy by  force  of  a  lien  upon  it.^  So  if  third  persons  have 
obtained  all  the  benefit  of  a  breach  of  the  trust,  the  trustees 
may  recover  from  them  the  loss  which  has  occurred  to  the 
trust  property.'-^  But  if  a  cestui  que  trust  has  reaped  all^  the 
profit  of  a  breach  of  the  trust,  the  trustees  cannot  compel  Mm 
to  refund,^  although  he  might  not  himself  be  able  to  maintain 
a  suit  against  the  trustees  for  a  breach  of  the  trust.  The 
decree  for  costs  against  cotrustees  for  breach  of  the  trust  is 
always  joint,^  and  if  one  pay  the  entire  cost,  he  may  have  an 
order  in  the  same  cause  for  contribution.^ 

§  849.  If  the  cestui  que  trust  concur  in  the  breach  of  the 
trust,  he  is  estopped  from  proceeding  against  the  trustee  ;  ^ 
but  he  must  know  that  the  acts  in  which  he  concurs  are  a 

336  ;  Att'y-Gen.  v.  Wilson,  1  Cr.  &  Phil.  28;  Fletcher  v.  Green,  33  Beav. 
613;  Wilson  v.  Goodman,  4  Hare,  54;  Ex  jmrte  Shakeshaft,  3  Bro.  Ch. 
198;  Perry  v.  Knott,  4  Beav.  180;  Att'y-Gen.  v.  Dallgars,  33  Beav.  624; 
Coppard  v.  Allen,  2  De  G.,  J.  &  S.  177;  KnatchbuU  v.  Fearnhead,  3  M.  & 

C.  122;  Pittw.  Bonner,  1  Y.  &  Col.  Ch.  670;  Ex  parte  Burton,  3  Mont., 

D.  &  De  G.  373 ;  Baynard  v.  Wolley,  20  Beav.  583. 
'  Binks  V.  Micklethwait,  33  Beav.  409. 

'^  Trafford  v.  Boehm,  3  Atk.  440  ;  Montford  v.  Cadogan,  1  Beav.  125; 
Binks  V.  Micklethwait,  33  Beav.  409;  Greenwood  u.  W^akeford,  1  Beav. 
580;  Booth  v.  Booth,  1  Beav.  125  ;  Howe  v.  Dai-tmouth,  7  Ves.  150;  Jacob 
V.  Lucas,  1  Beav.  436 ;  Lincoln  v.  Wright,  4  Beav.  432 ;  Vaughn  v.  Van- 
derstegen,  2  Drew.  165,  363;  Hobday  v.  Peters,  28  Beav.  354. 

3  Raby  v.  Ridelhalgh,  7  De  G.,  M.  &  G.  108. 

*  Lawrence  v.  Bowie,  2  Phil.  140;  1  C.  P.  Coop.  t.  Cott.  241. 

*  Pitt  V.  Bonner,  1  Y.  &  Col.  Ch.  670. 

^  Brice  v.  Stokes,  11  Ves.  319  ;  Walker  v.  Symonds,  3  Swans.  64  ;  Wil- 
kinson V.  Parry,  4  Russ.  272  ;  Cocker  v.  Quayle,  1  R.  &  M.  534;  Nail  v. 
Punter,  5  Sim.  555 ;  Newman  v.  Jones,  Finch,  58;  Fellows  v.  Mitchell, 
1  P.  Wms.  81;  Booth  v.  Booth,  1  Beav.  125;  Langford  v.  Gascoyne,  11 
Ves.  336;  White  v.  White,  5  Ves.  555;  In  re  Chertsey  Market,  6  Price, 
280;  Baker  v.  Carter,  1  Y.  &  Col.  255;  Byrchall  v.  Briidford,  6  Mad.  13; 
Morley  v.  Hawke,  cited  Small  v.  Attwood,  2  Y.  &  J.  520  ;  Fyler  v.  Fyler, 
3  Beav.  650;  Grifliths  v.  Porter,  25  Beav.  236  ;  Life  Asso.  of  Scotland  v. 
Slddall,  3  De  G.,  F.  &  J.  74;  Smith  v.  French,  2  Atk.  243  ;  Mayer  v. 
Gould,  1  Atk.  615;  Ryder  v.  Bickerton,  3  Swans.  80,  n. 


§§  848,  8-49.]    RELEASE  OF  BREACH  OF  TRUST.  481 

breacli  of  the  trust,^  and  he  must  be  capable  of  acting  for 
himself;  as  neither  a  feme  covert"^  nor  an  infant'^  can  concur 
in  a  Ijreach  of  trust,  they  having  no  authority  to  contract.  If, 
however,  a  married  woman  or  an  infant,  by  a  fraud,  procure 
the  breach  of  the  trust,  they  will  be  estopped  to  proceed  for 
such  breach  ;  for  they  have  no  privilege  to  commit  frauds.* 
But  a  married  woman  may  concur  in  a  breach  of  trust  in  re- 
spect to  estates  settled  to  her  separate  use.^  Where,  however, 
her  power  of  anticipation  is  restrained,  she  cannot  concur  in 
a  breach  of  the  trust.*^  And  her  concurrence  will  not  operate 
beyond  the  interest  settled  to  her  separate  use,  although  she 
may  have  a  power  of  appointment."  The  same  observations 
apply  to  more  formal  acts  by  married  women,  such  as  releases, 
confirmations,  and  waivers  of  breaches  of  trust.^  And  a 
married  woman  cannot  concur  in  a  breach  of  trust  before  her 
interest  falls  into  enjoyment,  but  a  trustee  will  be  liable  for 
the  whole  fund,  though  it  was  lost  by  her  procurement,  before 
her  interest  fell  into  possession.^ 

»  Buckeridge  v.  Glasse,  1  Cr.  &  Phil.  135;  Cope  v.  Clark,  18  W.  R.  279. 

^  Walker  v.  Symonds,  8  Swans.  80,  and  cases  cited ;  Underwood  i\  Ste- 
vens, 1  iMer.  717;  Parkes  v.  White,  11  Ves.  221;  Needler's  Case,  Hob. 
225  ;  Bateman  v.  Davis,  3  Mad.  98  ;  Smith  v.  French,  2  Atk.  243;  Montford 
V.  Cadogan,  19  Ves.  639;  Creswell  v.  Dewell,  4  Gif.  460;  Vreeland  v.  Van 
Horn,  2  Green,  137  ;  Smith  v.  French,  2  Atk.  243 ;  Thayer  v.  Gould,  1  Atk. 
615;  Ryder  v.  French,  3  Swans.  80,  n. 

*  Ante,  §  52-54. 

*  Ante,  §  53  ;  Davis  v.  Tingle,  8  B.  Mon.  359  ;  Hall  v.  Timmons,  2  Ri<h. 
Eq.  120;  Stoolfoos  v.  Jenkins,  12  S.  &  R.  399  ;  Wright  v.  Snowe,  2  De  G. 
&  Sm.  320;  Wright  v.  Arnold,  14  B.  Mon.  643. 

6  Ante,  §  669.  «  Ante,  §  669,  671. 

'  Kellaway  r.  Johnston,  5  Bear.  319;  Vaughn  v.  Vanderstegen,  2  Dr. 
165;  Blatchford  v.  WooUey,  2  Dr.  &  Sm.  204;  Hobday  v  Peters,  28  Beav. 
354 ;  Shattoik  v.  Shattock,  L.  R.  2  Eq.  182 ;  Brewer  v.  Swirley,  2  Sm.  & 
Gif.  219;  Fletchers.  Green,  33  Beav.  426. 

*  Jones  V.  Higgins,  L.  R.  2  Eq.  598 ;  Smith  v.  French,  2  Atk.  245 ; 
Davis  V.  Hodgson,  25  Beav.  187;  Derbishire  v.  Home,  3  De  G.,  M.  &  G. 
80;  Wilton  v.  Hill,  25  L.  J.  (n.  s.)  Ch.  156;  Clive  v.  Carew,  1  John.  & 
Hem.  205 ;  Rowley  v.  Unwin,  2  Kay  &  John.  138. 

*  Mora  V.  Manning,  8  Ir.  Eq.  218. 

VOL.  II.  31 


482  RELEASE   OF   BREACH    OF   TRUST.        [CHAP.  XXYII. 

§  850.  So  a  cestui  que  trust  may  be  debarred  from  relief 
by  long  acquiescence  in  a  breach  of  the  trust,  though  he  did 
not  originally  concur  in  it.^  If  the  cestui  que  trust  neglects 
to  sue  for  twenty  years,  it  will  be  such  laches  that  it  will  bar 
relief ;  '^  but  a  mere  neglect  to  sue  for  a  few  years,  without 
other  acquiescence,  is  not  a  bar ;  ^  nor  can  a  party  sue  until 
his  interest  falls  into  possession;^  nor  can  any  acquiescence 
be  inferred  until  the  cestui  que  trust  has  actual  knowledge  of 
the  breach,  for  the  reason  that  it  is  the  duty  of  the  trustee  to 
execute  the  trust,  and  it  is  not  the  duty  of  the  cestui  que  trust 
to  make  any  inquiries.^  So  if  the  cestui  que  trust  gets  what 
he  can  from  the  wreck  after  a  breach  of  the  trust,  and  receives 
a  part  of  what  he  is  entitled  to,  he  does  not  thereby  waive  his 
right  to  sue  for  the  whole,  when  he  can  obtain  it.^ 

§  851.  A  cestui  que  trust  may  release  a  breach  of  trust  by 
giving  to  the  trustee  a  formal  release,  or  a  formal  confirmation 
of  the  transaction.'^  A  release  of  the  principal  in  a  breach  of 
the  trust  is  a  release  of  all  parties  who  would  be  liable  second- 
arily, or  as  sureties.^     So  it  is  said  that  the  cestui  que  trust 

'  Harden  v.  Parsons,  1  Ed.  145 ;  Villines  v.  Norfleet,  2  Dev.  Eq.  167. 
See  post.  Chap.  XXVIII.  passim. 

*  Bright  V.  Legerton,  29  Beav.  60 ;  2  De  G.,  F.  &  J.  606 ;  Hodgson  v. 
Bibby,  32  Beav.  221 ;  Browne  v.  Cross,  14  Beav.  105 ;  Be  McKenna,  13 
Ir.  Eq.  239 ;  Clanricarde  v.  Henning,  30  Beav.  175 ;  Scott  i'.  Haddock,  11 
Ga.  258;  Obee  v.  Bishop,  1  De  G.,  F.  &  J.  137. 

^  Hanchett  v.  Briscoe,  22  Beav.  496. 

*  Knight  V.  Bower,  2  De  G.  &  J.  421,  443;  Life  Asso.  of  Scotland  v. 
Siddall,  3  De  G..  F.  &  J.  72,  74,  77. 

'  Thompson  v.  Finch,  22  Beav.  325 ;  8  De  G.,  M.  &  G.  560;  Life  Asso. 
of  Scotland  v.  Siddall,  3  De  G.,  F.  &  J.  73;  Prevost  v.  Gratz,  Pet.  66, 
367 ;  6  Wheat.  487 ;  Mellish's  Est.  1  Pars.  Eq.  486 ;  Beeson  v.  Beeson.  9 
Barr,  300. 

«  Thompson  v.  Finch,  22  Beav.  316 ;  8  De  G.,  M.  &  G.  560. 

"^  Blackwood  v.  Borrowes,  2  Conn.  &  Laws.  459 ;  French  v.  Hobson,  9 
Ves.  103;  Wilkinson  v.  Parry,  4  Russ.  272;  Small  v.  Attwood,  2  Y.  &  J. 
617,  and  cases  cited  ;  Cresswell  ».  Dewell,  4  Gif.  465. 

*  Thompson  v.  Harrison,  2  Bro.  Ch.  164;  Blackwood  v.  Borrowes,  2 
Conn.  &  Laws,  478. 


§§  850,  851.]    WAIVER  OF  BREACH  OF  TRUST.  483 

may  for  a  good  consideration  waive  a  breach  of  the  trust. ^ 
But  all  agreements  or  contracts  between  trustee  and  cestui 
que  ti'ust  are  looked  upon  with  suspicion  by  the  court,  and 
are  closely  scrutinized ;  therefore,  in  order  that  the  release, 
confirmation,  waiver,  or  acquiescence  may  have  any  effect,  the 
cestui  que  trust  must  have  full  knowledge  of  all  the  facts  and 
circumstances  of  the  case  ;  ^  he  must  also  know  the  law,  and 
what  his  rights  are,  and  how  they  would  be  dealt  with  by  the 
court.^  He  must  not  execute  the  release,  or  do  the  acts  relied 
on  as  a  waiver,  confirmation,  or  acquiescence,  under  undue  influ- 
ence or  fear  of  the  trustee*  The  cestui  que  trust  must  be  sui 
juris,  as  an  infant  cannot  be  bound  by  a  release  or  other  act ;  ^ 

'  Stackhouse  v.  Barnston,  10  Ves.  46. 

'  Adams  v.  Clifton,  1  Russ.  297 ;  Walker  v.  Symonds,  3  Swans.  1 ;  Ran- 
dall V.  Errington,  10  Ves.  423  ;  Bnckeridge  v.  Glasse,  Cr.  &  Phil.  126  ; 
Bennett  v.  CoUey,  2  M.  &  K.  232;  Vyvyan  v.  Vyvyan,  30  Beav.  65; 
Eaves  v.  Hickson,  30  Beav.  142;  Farrant  v.  Blanchford,  1  De  G.,  J.  &  S. 
119;  Life  Asso.  of  Scotland  v.  Siddall,  3  De  G.,  F.  &  J.  74;  Strange  v. 
Fooks,  4  Gif.  408;  Chesterfield  v.  Janssen,  2  Ves.  146,  149,  152,  158; 
Roche  V.  O'Brien,  1  B.  »&  B.  339,  and  cases  cited ;  Bowes  v.  East  London 
Water  Works  Co.  3  Mad.  375;  McCarthy  v.  pecaix.  2  R.  &  M.  615; 
Wedderburn  v.  AVedderburn,  2  Keen,  722 ;  4  M.  &  C.  41 ;  Munch  v.  Cock- 
erell,  9  Sim.  339 ;  5  M.  &  C.  179 ;  Broadhurst  v.  Balguy,  1  Y.  &  Col.  Ch. 
16 ;  Downes  v.  Bullock,  25  Beav.  62 ;  Lloyd  v.  Attwood,  3  De  G.  &  J. 
650;  Berryhill's  App.  35  Penn.  St.  245;  Ringgold  v.  Ringgold,  1  Har.  & 
Gill,  11;  Briers  v.  Hackney,  6  Ga.  419;  Persch  v.  Quiggle,  57  Penn.  St. 
247  ;  Shortel's  App.  64  Penn.  St.  25  ;  Diller  v.  Brabaker,  52  Penn.  St.  498  ; 
Campbell  v.  McLain,  51  Penn.  St.  200;  Maul  r.  Rider,  51  Penn.  St.  377. 

8  Cockerell  v.  Cholmeley,  1  R.  «&  II.  425 ;  McCarthy  v.  Dec-aix,  2  R.  & 
M.  615;  Marker  v.  Marker,  9  Hare,  16;  Burrows  v.  Walls,  5  De  G.,  M. 
&  G.  254  ;  Be  Saxon  Life  Ins.  Co.  2  John.  &  Hem.  412  ;  Strange  v.  Fooks, 
4  Gif.  408 ;  Stafford  v.  StaflFord,  1  De  G.  &  Jon.  202. 

"  Bowles  V.  Stewart,  1  Sch.  &  Lef.  209 ;  Chesterfield  v.  Janssen,  2  Ves. 
149,  158. 

*  Walker  v.  Symonds,  3  Swans.  69;  Hicks  v.  Hicks,  3  Atk.  274; 
Osmond  v.  Fitzroy,  3  P.  Wms.  131  ;  Hylton  v.  Hylton,  2  Ves.  547;  Kilby 
V.  Sneyd,  2  Moll.  233;  March  v.  Russell,  3  M.  &  C.  42,  44;  Bateman  v. 
Davis,  3  Mad.  98 ;  Wedderburn  v.  Wedderburn,  2  Keen,  722 ;  4  M.  &  C. 
41 ;  Kay  r.  Smith,  21  Beav.  522;  Aveline  v.  Melhuish,  2  De  G.,  J.  &  Sm. 
288 ;  Chambers  r.  Crabbc,  34  Beav.  457. 


484  WAIVER   OF   BREACH   OF   TRUST.  [CHAP.  XXVII. 

and  if  the  cestui  que  trust  has  just  come  of  age,  he  ought  to 
have  proper  legal  advice.^ 

§  852.  So  a  breach  of  trust  may  be  discharged  by  the  will  of 
the  cestui  que  trust  entitled  to  the  fund ;  and  a  legacy  may  be 
a  satisfaction  of  the  breach.  So  the  acceptance  of  a  part  of 
the  purchase-money  by  the  cestui  que  trust  may  be  a  confirma- 
tion of  a  sale  made  in  breach  of  the  trust.^ 

§  853.  Of  course,  no  one  not  interested  as  a  beneficiary  can 
release  or  waive  a  breach  of  the  trust.^  When  creditors  liave 
a  right  to  come  in  and  claim  an  account,  or  to  have  conveyances 
set  aside,  it  is  on  the  ground  tliat  the  law  gives  them  a  right 
and  interest  to  secure  the  property  to  pay  the  debts  due  to 
them.* 

>  Lloyd  V.  Attwood,  3  De  G.  «&  J,  615;  Elliott  v.  Elliott,  5  Benn.  8; 
Say  V.  Barnes,  4  S.  &  R.  14 ;  Luken's  App.  7  W.  &  S.  48 ;  Stanley's  App. 
8Barr,  431;  Williams  v.  Powell,  1  Ired.  Eq.  460;"  Johnson  v.  Johnson,  2 
Hill,  Eq.  277;  Brewer  v.  Vanarsdale,  6  Dana,  204;  Fish  v.  Miller,  1  HoflF. 
267;  Waller  v.  Armistead,  2  Leigh,  11;  Kirby  v.  Taylor,  6  John.  Ch.  242. 

2  Stump  V.  Gaby,  2  D^  G.,  M.  &  G.  623:  Bensusan  v.  Nehemias,  20 
L.  J.  Ch.  536 ;  4  De  G.  &  Sm.  381 ;  Rosenberger's  App.  26  Penn.  67 ; 
ante,  §  202. 

^  Wilson  V.  Troup,  2  Cow.  195 ;  Beeson  v.  Beeson,  9  Barr,  279. 

*  Bruch  V.  Lantz,  2  Rawle,  392 ;  Iddings  v.  Bruen,  4  Sand.  Ch.  223. 


§§  851-855.]       THE  BAR  IS  THE  SAME  IN  LAW  AND  EQUITY.        485 


CHAPTER  XXYIII. 

THE  STATUTE  OP  LIMITATIONS,  LAPSE  OF   TIME,  AND  PUBLIC  POLICY 
AS  AFFECTING  TRUSTS. 

§  854.  Three  bars  in  equity. 

§  855.  The  statute  bar  at  hiw  and  in  equity  the  same. 

§  856.  When  the  statute  begins  to  run. 

§  857.  The  statute  an  absolute  bar  where  it  applies. 
§§  858,  859.   Whether  the  cestui  que  trust  is  barred  by  the  nefrlect  of  the  trustee. 

§  860.  Where  the  trustee  convej's  to  a  third  person  in  breach  of  the  trust. 

§  861.  Wliere  there  is  fraud. 

§  862.  How  the  statute  bar  may  be  taken  advantage  of. 

§  863.  The  statute  bar  as  between  trustee  and  cestui  que  trust. 

§  864.  When  the  statute  will  begin  to  run  as  between  trustee  and  cestui  que  trust. 

§  865.  Whether  the  statute  applies  to  constructive  trusts. 

§  866.  What  acts  will  be  presumed  to  have  been  done  after  a  great  length  of  time. 

§  867.  When  a  person  is  ignorant  of  his  rights. 

§  868.  How  lap^e  of  time  may  be  taken  advantage  of. 

§  869.  Where  public  policy  is  a  bar  to  the  litigation  of  old  and  stale  claims. 

§  870.  Where  acquiescence  may  bar  a  right  or  claim. 
§§  871,  872.  How  far  back  accounts  for  mesne  profits  will  be  ordered. 

§  854.  There  are  three  bars  to  claims  or  suits  in  equity  aris- 
ing from  lapse  of  time  :  I.  The  statute  of  limitations ;  II.  The 
presumption  of  something  done,  which,  if  done,  is  an  answer 
to  the  plaintiff's  suit ;  III.  Public  policy,  which  forbids  the 
litigation  of  old  and  stale  demands.  These  matters  may  be 
examined :  (1)  As  between  the  trustee  and  cedui  que  trust 
on  the  one  side,  and  a  stranger  on  the  other ;  and  (2)  as 
between  the  trustee  and  cestui  que  trust. 

§  855.  Where  there  is  a  statute  bar  at  law,  the  same  period, 
in  analogy  or  obedience  to  the  statute,  is  adopted  in  equity  as 
a  bar  to  equitable  claims.  Lord  Camden  said :  "  A  court  of 
equity  has  no  legislative  authority,  and  it  cannot  properly 
define  the  time  of  bar   by  a  positive  rule,  to  an  hour,  minute, 


486  STATUTE   OF   LIMITATIONS.  [CHAP.  XXVITI. 

or  year  :  it  is  governed  by  circumstances.  But  as  often  as 
parliament  has  limited  the  time  of  actions  and  remedies  to  a 
certain  period  in  legal  proceedings,  chancery  has  adopted  that 
rule  and  applied  it  to  similar  cases  in  equity  ;  for  when  the 
legislature  has  fixed  a  time  at  law,  it  would  be  preposterous 
for  equity,  which  by  its  proper  authority  always  maintained  a 
limitation,  to  countenance  laches  beyond  the  period  allowed  by 
law.  Therefore,  in  all  cases,  where  the  legal  right  has  been 
barred  by  parliament,  the  equitable  right  to  the  same  thing 
lias  been  concluded  by  the  same  bar."  ^  Lord  Redesdale  was 
of  opinion,  "  that  the  statute  virtually  included  courts  of  equity, 
and  that  it  was  a  mistake  to  say  that  equity  acts  in  analogy  to 
the  statute  :  it  acts  in  obedience  to  it.  Equity  follows  the  law."  ^ 
The  same  opinion  has  been  held  by  other  great  judges  in  Eng- 
land ^  and  America.^ 

'  Smith  V.  Clay,  cited  in  Deloraine  v.  Browne,  3  Bro.  Ch.  639. 

^  Hovenden  r.  Annesley,  2  Sch.  &  Lef.  630. 

^  Cholmondeley  v.  Clinton,  2  J.  &  W.  192  ;  Bond  v.  Hopkins,  1  Sch.  & 
Lef.  429 ;  Medlicott  v.  O'Donel,  1  B.  &  B.  166  ;  Foley  v.  Hill,  1  Phil.  405 ; 
£x  parte  Dewdney,  15  Ves.  496 ;  Clanricarde  v.  Henning,  30  Beav.  175  ; 
Att'y-Gen.  v.  Exeter,  Jac.  448 ;  Knowles  v.  Spence,  1  Eq.  Ca.  Ab.  315 ; 
Hamilton  v.  Grant,  3  Dow.  44;  Townshend  v.  Townshend,  1  Bro.  Ch.  554; 
Salter  v.  Cavanagh,  1  Dr.  &  W.  668 ;  Bonney  v.  Ridgard,  1  Cox,  149 ; 
Pearson  v.  Pulley,  1  Ch.  Ca.  102;  Beckford  v.  Wade,  17  Yes.  97;  White 
V.  Ewer,  2  Vent.  340;  Kingston  v.  Lorton,  2  Hog.  166 ;  Johnson  v.  Smith, 
2  Burr.  961;  Aggas  v.  Pickerell,  3  Atk.  225;  Belch  v.  Harvey,  App.  to 
Sugd.  V.  &P.  (13th  ed.). 

•*  Bowman  v.  Wathen,  2  McLean,  376 ;  1  How.  189  ;  Chapman  v.  Butler, 
22  Mo.  19 ;  Phillips  v.  Rogers,  12  Met.  405 ;  Bank  of  U.  S.  v.  Daniel,  12 
Pet.  56;  Dodge  v.  Essex  Ins.  Co.  12  Gray,  71 ;  Farnam  v.  Brooks,  9  Pick. 
212 ;  Kane  v.  Bloodgood,  7  John.  Ch.  90 ;  Robinson  v.  Hook,  4  Mason, 
139;  Miller  v.  Mclntire,  6  Pet.  61 ;  Baker  v.  Biddle,  Baldw.  419  ;  Hawkins 
V.  Barney,  5  Pet.  457  ;  Coulson  v.  Walton,  9  Pet.  62 ;  Boone  v.  Chiles,  10 
Pet.  177  ;  Elsmendorf  v.  Taylor,  10  Wheat.  152 ;  Piatt  v.  Vattier,  1  McLean, 
16 ;  9  Pet.  416 ;  People  v.  Everest,  4  Hill,  71  ;  Michoud  v.  Girod,  4  How. 
591;  Taylor  «.  Benham,  5  How.  233;  Lawrence  v.  Trustees,  &c.,  2  Denio, 
677  ;  Bruen  v.  Hone,  2  Barb.  586  ;  McCarter  v.  Cornel,  1  Barb.  Ch.  233  ; 
Perkins  v.  Cartwell,  4  Har.  (Del.)  270;  Manchester  v.  Mathewson,  3  R.  I. 
237;  Dean  v.  Dean,  1  Stockt.  425;  McCrea  v.  Piermont,  16  Wend.  460; 
Humbert  v.  Trinity  Church,  24  Wend.  587  ;  7  Paige,  195  ;  Hayden  v.  Buck- 


§§  855-858.]       AS   BETWEEN    CESTUI    QUE    TRUST,    ETC.  487 

§  856.  upon  these  principles,  an  equitable  claim  to  lands 
cannot  be  enforced  after  the  lapse  of  twenty  years  ;  for,  al- 
though writs  0^  rigid  may  be  brought  after  a  longer  period,  yet 
this  has  always  been  looked  upon  as  an  exception  to  the  general 
rule.^  At  laiv,  the  statute  time  docs  not  begin  to  run  against 
a  remainder-man  until  the  determination  of  the  particular 
estate,^  except  in  the  case  of  a  mortgage.  If  a  mortgagee 
enters  to  foreclose,  the  time  will  run  against  the  remainder- 
man, although  the  tenant  for  life  is  in  possession,  on  the 
ground  that  the  remainder-man,  though  out  of  possession,  may 
have  a  bill  to  redeem. ^  But  if  the  mortgagee  is  also  tenant 
for  life,  the  time  does  not  begin  to  run  until  his  death  ;^  and 
so  if  the  mortgagee  is  tenant  in  common  with  others  of  the 
equity  of  redemption.^ 

§  857.  The  statute  bar  is  absolute  where  it  apjjlies,  and  no 
allegations  of  poverty,  ignorance,  hardship,  or  mistake  can 
avoid  it.  If  courts  allowed  the  rules  of  law,  or  periods  of  time, 
to  be  controlled  by  such  considerations,  there  would  be  no  end 
to  litigation,  and  no  certain  rules  of  property.*^ 

§  858.  It  was  said  in  one  case,  that  "  forbearance  of  the 
trustees,  in  not  doing  what  it  was  their  office  to  have  done, 

lin,  9  Paige,  512  ;  Saunders  v.  Collin,  1  Dev.  &  Bat.  95 ;  Ridley  v.  Iletnian, 
10  Ohio,  524  ;  Long  v.  White,  5  J.  J.  Marsh.  231  ;  Reeves  v.  Dougherty> 
7  Yerg.  222;  Tiernan  v.  Rescaniere,  10  Gill  &  J.  218;  Paflf  v.  Kinney,  1 
Bradl'.  1 ;  Lorman  v.  Clarke,  2  McLean,  273  ;  Demarest  v.  Wynkoop,  3 
John.  Ch.   129. 

1  Cholmondeley  v.  Clinton,  2  J.  &  W.  192. 

*  Gen.  Stat,  of  Mass.  c.  15-i,  §  3;  Wells  v.  Prince,  9  Mass.  508;  Wal- 
lingford  v.  Heard,  15  Mass.  471  ;   Bacon  v.  Mclntire,  8  Met.  89. 

8  Gifford  I'.  Ilort,  1  Sch.  &  Lef.  407 ;  Blake  v.  Foster,  4  Bligh  (x.  s.) 
407;  Corbett  r.  Barker,  1  Anstr.  138;  3  Anstr.  755;  Harrison  v.  Hollins, 
IS.  &S.  491;  2  Phil.  121. 

■•  Raffety  v.  King,  1  Keen,  601 ;  Burrell  v.  Egremont,  7  Beav.  205. 

*  Wynne  v.  Styan,  2  Phil.  205. 

«  Cholmondeley  v.  Clinton,  2  J.  &  W.  139;  Brooksbank  v.  Smith,  2  Y. 
&  Col.  58;  Byrne  v.  Frere,  2  Moll.  171 ;  Ilovenden  v.  Annesley,  2  Seh.  & 
Lef.  640. 


488  STATUTE    OF  LLMITATIONS.  [CHAP.  XXVIII. 

should  in  no  sort  prejudice  the  cestui  que  trust  ;^^'^  that  is, 
that  if  the  trustee  does  not  bring  an  action  to  recover  the  estate 
within  the  statutory  period,  tlie  cestui  que  trust  is  not  barred. 
But  this  is  not  the  rule  of  law.  Lord  Hardwicke  said  :  "  The 
rule  that  the  statute  of  limitations  does  not  bar  a  trust  estate 
holds  only  between  cestui  que  trust  and  trustee,  not  as  between 
cestui  que  trust  and  trustee  on  one  side,  and  strangers  on  the 
other ;  for  that  would  make  the  statute  of  no  force  at  all, 
because  there  is  hardly  any  estate  of  consequence  without  such 
trust,  and  so  the  act  would  never  take  place.  Therefore,  where 
the  cestui  que  trust  and  his  trustee  are  both  out  of  possession  for 
the  time  limited,  the  party  in  possession  has  a  good  bar  against 
them  both."  2  Lord  Redesdale  and  Lord  Manners  made  simi- 
lar observations  and  decisions.^  But  it  would  seem,  that,  if 
the  cestui  que  trust  is  entitled  to  an  interest  in  remainder  only, 
the  statutory  bar  ought  not  to  begin  to  run  against  him  until 
his  interest  falls  into  a  right  to  the  possession  of  the  beneficial 
or  equitable  interest.* 

§  859.  If  the  subject-matter  of  the  trust  is  a  debt  due  the 
trustee  for  his  cestui  que  trust,  the  statute  runs  against  it.  Li 
such  case,  there  is  no  right  to  sue  in  equity.  The  cestui  que 
trust  has  the  right  to  use  the  name  of  the  trustee  in  an  action 
at  law  to  recover  the  debt.  But  the  legal  limitation  cannot  be 
avoided  by  changing  the  tribunal.^     It  is  said,  however,  that, 

'  Lechmere  «.  Carlisle,  3  P.  Wms.  215. 

*  LlewelHn  v.  Mackworth,  3  Eq.  Ca.  Ab.  579 ;  Barn.  446 ;  Crowther  v. 
Crowther,  23  Beav.  305 ;  Herndon  v.  Pratt,  6  Jones,  Eq.  327  ;  Fleming  v. 
Gilmer,  35  Ala.  62 ;  Mason  v.  Mason,  33  Ga.  435 ;  Watkins  v.  Specht,  7 
Coldw.  585  ;  Herndon  t'.  Pratt,  6  Jones,  Eq.  327  ;  Crook  v.  Glen,  30  Md.  55. 

3  Hovenden  v.  Anneslev,  2  Sch.  &  Lef.  629 ;  Pentland  v.  Stokes,  2  B.  & 
B.  75 ;  Allen  v.  Saver,  2  Vern.  368 ;  Lewin,  625 ;  Wych  v.  East  India  Co. 
3  P.  Wms.  309  ;  Earl  v.  Huntingdon,  ib.  ;  Thomas  v.  Thomas,  2  K.  &  J. 
79 ;  Goss  v.  Singleton,  2  Head,  67  ;  Belote  v.  White,  2  Head,  703  ;  Maddox 
V.  Allen,  1  Met.  (Ky.)  495. 

4  Parker  v.  Hall,  2  Head,  641. 

^  Hammond  v.  Messenger,  9  Sim.  327  ;  Bolton  v.  Powell,  14  Beav.  275 ; 
Wych  V.  East  India  Co.  3  P.  Wms.  309 ;  Mason  v.  Mason,  33  Ga.  435. 


§§  858-860.]       AS    BETWEEN    CESTUI   QUE   TRUST,    ETC.  489 

if  the  debtor  borrowed  the  money,  knowing  it  to  be  trust  money, 
especially  if  he  borrowed  it  in  breach  of  the  trust,  he  l)ecomes 
so  far  affected  by  the  equities  of  the  trust  that  he  liolds  it  as 
a  trustee,  and  he  cannot  set  up  the  statute  as  a  bar  against  the 
rights  of  the  cestui  que  trust} 

§  860.  If  a  trustee,  in  breach  of  his  trust,  conveys  the  land 
to  a  third  person,  such  third  person,  if  he  is  an  innocent  pur- 
chaser for  value  without  notice,  will  hold  the  estate  discharged 
of  the  trust.  But  if  he  received  the  conveyance  with  notice, 
or  without  paying  any  consideration,  he  will  be  holden  as  a 
trustee ;  for  the  cestui  que  trust  may  enforce  the  trust  against 
him  by  proceeding  in  equity.  Whether  the  cestui  que  trust  can 
bring  such  bill  after  the  lapse  of  twenty  years  without  claim, 
or  after  the  trustee  is  barred  from  maintaining  a  real  action, 
is  a  serious  question.  It  may  be  said,  that  the  relation  between 
such  holder  of  the  legal  title  and  the  cestui  que  trust  is  that  of 
trustee  and  cestui  que  trust,  and  that  the  same  principles  apply, 
respecting  the  application  of  the  statute,  as  apply  between  the 
trustee  and  cestui  que  trust  in  an  express  trust.  But,  on  the 
other  hand,  such  holder  of  the  legal  title  is  not  a  trustee, 
except  by  construction  of  law,  and  until  a  decree  of  the  court 
is  had  ;  and  if  he  has  denied  the  trust  for  more  than  twenty 
years  and  held  adversely,  there  would  seem  to  be  no  reason 
why  equitable  as  well  as  legal  rights  should  not  be  barred.^ 
But,  in  these  cases,  the  rights  of  the  cestui  que  trust  cannot  be 
barred  until  his  rights  fall  into  possession.  If,  therefore,  the 
cestui  que  trust  holds  in  remainder  or  reversion,  the  statute 
will  not  begin  to  run  until  his  right  to  the  possession  falls  in 
by  the  determination  of  the  particular  estate.     So  if  the  cestui 

'  Spickernell  v.  Hotliam,  Kay,  G09 ;  Bridgman  v.  Gill,  24  Beav.  302 ; 
Ernest  r.  Croysdill,  6  Jur.  (n.  s.)  7-iO;  Uphain  v.  AVyinan,  7  Allen,  4"J9 ; 
Sheridan  v.  Joyce,  7  Ir.  Eq.  115. 

"  Merriam  v.  Hassam,  14  Allen,  520;  Milling  v.  Leak,  32  Eng.  L.  &  Eq. 
442 ;  Att'y-Gen.  i\  Federal  St.  Meeting-house.  3  Gray,  1  ;  Williams  i".  First 
Presby.  Soo.  1  Ohio  St.  478. 


490  STATUTE   OP   LIMITATIONS.  [CHAP.  XXVIII. 

que  trust  is  under  disability,  the  statute  will  not  begin  to  run 
until  the  disability  is  removed.^ 

§  861.  No  time  will  protect  a  fraud  so  long  as  it  is  con- 
cealed ;  therefore,  until  a  fraud  is  discovered,  or  could  have 
been  discovered  by  ordinary  diligence,  the  statute  does  not 
begin  to  run  ;  for  no  cause  of  action  exists  within  the  knowl- 
edge of  the  party  entitled  to  the  action.^  But  as  soon  as  the 
fraud  is  known,  the  statute  begins  to  run,  and  the  defendant 
has  a  right  to  say  that  the  matter  cannot  be  brought  under 
discussion  at  so  late  a  period;  that  it  is  the  plaintiff's  own 
fault  if  he  delays  for  more  than  twenty  years  after  the  fraud  is 
known. 3  In  one  case,  it  was  said  that  the  statute  would  run 
from  the  date  of  the  fraud,  provided  the  party  had  notice  of  it 
within  a  reasonable  time  during  which  to  bring  his  action 
before  the  expiration  of  the  twenty  years.^  But  the  general 
rule  is,  that  the  time  does  not  begin  to  run  until  the  fraud  is 
known.^ 

'  Thompson  v.  Simpson,  1  Dr.  &  War.  489;  Att'y-Gen.  v.  Magdalen 
College,  18  Beav.  239 ;  6  H.  L.  Ca.  21.t  ;  Life  Asso.  of  Scotland  v.  Siddall, 
3  De  G.,  F.  &  J.  58;  Price's  App.  54  Penn.  St.  472. 

*  Blair  v.  Bromley,  2  Phil.  354;  Booth  v.  Warrington,  4  Bro.  P.  C.  163 ; 
Alden  v.  Gregory,  2  Ed.  280  ;  Cotterell  v.  Purchase,  Cas.  t.  Talb.  63  ;  Arran 
V.  Tyrawley,  cited  1  B.  «&  B.  106  ;  Rolf  i\  Gregory,  11  Jur.  (x.  s.)  97  ;  4  De 
G.,  J.  &  S.  576;  Medlicott  v.  O'Donel,  IB.  &  B.  166 ;  Morse  v.  Royal,  12 
Ves.  374 ;  Bicknell  v.  Gouch,  3  Atk.  558  ;  South  Sea  Co.  v.  Wymondsell,  3  P. 
Wms.  143 ;  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  634 ;  Pickering  v.  Stam- 
ford, 2  Ves.  Jr.  280;  Robertson  v.  Norris,  1  Gif.  421;  Western  v.  Cart- 
wright,  1  Sel.  Ca.  Ch.  34;  Blennerhassett  v.  Day,  2  B.  &  B.  118;  Roche 
V.  O'Brien,  1  B.  &  B.  330;  Watson  v.  Toone,  5  Mad.  54;  Whalley  v. 
Whalley,  1  Mer.  436 ;  Pilcher  v.  Flinn,  30  Ind.  202 ;  Carr  v.  Hilton,  1 
Curtis  C.  C.  390;  IVIartin  v.  Smith,  1  Dillon,  95. 

^  Hovenden  ».  Annesley,  2  Sch.  &  Lef.  634;  Western  v.  Cartwright, 
Sel.  Ca.  Ch.  34;  Mulcahy  v.  Kennedy,  1  Ridg.  337. 

*  Byrne  v.  Frere,  2  Moll.  137;  Relf  «.  Eberly,  23  lo.  467. 

^  Hieronymous  v.  Mayhali,  1  Bush,  508 ;  Townsend  v.  Townsend,  4 
Cold.  70;  Relf  v.  Eberly,  23  lo.  467;  Baldwin  v.  Tuttle,  23  lo.  66;  Mc- 
Carthys. Kyle,  4  Cold.  348;  Hoyle  v.  Jones,  35  Ga.  40;  Boyd  v.  Boyd, 
27  Ind.  429 ;  Curry  v.  Allen,  36  Cal.  254. 


§§  860-863.]  AS   BETWEEN   TRUSTEE,   ETC.  491 

§  862.  The  statute  is  so  clear  a  defence,  that  the  defendant 
may  demur  ^  whenever  the  facts  appear  upon  tlie  face  of  the 
bill ;  if  they  do  not,  he  may  set  them  forth  in  a  plea,^  or  in  his 
answer,  and  pray  the  same  benefit  as  if  he  had  demurred,  or 
pleaded  the  statute.^  If  the  defendant  does  not  do  one  of  these 
things,  he  can  have  no  benefit  from  the  statute  at  the  hearing  ;* 
though  it  is  said  that  the  court  may  in  its  discretion  refuse 
relief  after  the  limited  period.^  If  the  bill  contains  charges  of 
fraud,  the  defendant  may  demur  ^  or  plead,'  according  as  the 
facts  and  circumstances  a])pear  upon  the  face  of  the  bill.  But 
if  the  plaintiff  alleges  that  he  did  not  discover  the  fraud  within 
the  period  limited  by  the  statute,  the  defendant  must  in  his 
plea  or  answer  either  deny  the  fraud  or  allege  that  the  plaintiff 
had  knowledge.^ 

§  863.  As  between  trustee  and  cestui  que  trust,  in  the  case 
of  an  express  trust,  the  statute  of  limitations  has  no  applica- 
tion, and  no  length  of  time  is  a  bar.^     Accounts  have  been 

'  Foster  v.  Hodgson,  19  Ves.  180;  Bampton  v.  Birchall,  5  Beav.  67; 
Hoare  v.  Peck,  6  Sim.  51 ;  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  637  ; 
Aggas  V.  Pickerell,  3  Atk.  225;  Hodle  v.  Ilealey,  1  V.  &  B.  539;  Beckford 
V.  Close,  cited  6  Sim.  184: ;  Hardy  v.  Reeves,  4  Ves.  479  ;  Pearson  v.  Pulley, 
1  Ch.  Ca.  102;  Frazer  v.  Moor,  Bunb.  54;  Prance  v.  Sympson,  Kay,  680; 
Ferguson  v.  Livingston,  9  Ir.  E({.  202 ;  Fyson  v.  Pole,  3  Y.  &  Col.  266 ; 
Cook  V.  Arnham,  3  P.  Wms.  287,  and  cases  cited.  Deloraine  v.  Browne, 
3  Bro.  Ch.  635,  is  inconsistent.     And  see  O'Kelly  v.  Glenny,  9  Ir.  Eq.  25. 

^  Aggas  V.  Pickerell,  3  Atk.  225 ;  Blewitt  v.  Thomas,  2  Ves.  Jr.  669 ; 
Wych  V.  East  India  Co.  3  P.  Wms.  309;  Walford  v.  Liddcl,  2  Ves.  400; 
Lacon  v.  Lacon,  2  Atk.  395. 

=•  Barber  v.  Barber,  18  Ves.  286. 

*  Prince  v.  Ileylin,  1  Atk.  494;  Harrison  v.  Boswell,  10  Sim.  382;  Roch 
r.  Callen,  6  Hare,  535 ;  Sleight  v.  Lawson,  3  K.  &  J.  296. 

^  Prince  v.  Heylin,  1  Atk.  494. 

®  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  637,  in  which  Deloraine  v. 
Browne,  3  Bro.  Ch.  633,  is  commented  upon;   Hoare  v.  Peck,  6  Sim.  5L 

^  South  Sea  Co.  v.  Wymondsell,  3  P.  Wms.  143. 

«  Mitford  on  Plead.  269;  Story,  Eq.  Plead.  §§  503-506. 

'  Chalmer  u.  Bradley,  1  J.  &  W.  27;  Llewellin  v.  Mackwortli,  Barn. 
449 ;  Townshend  v.  Townshend,  1  Bro.  Ch.  554 ;    HoUis's  Case,  2  Veutr. 


492  STATUTE   OF  LIMITATIONS.  [CHAP.  XXVIII. 

decreed  against  trustees,  extending  over  periods  of  thirty, 
forty,  and  even  fifty  years. ^     The  relations  and  privity  between 

345 ;  Hargreaves  v.  Michell,  6  Mad.  326 ;  Massey  v.  O'Dell,  10  Ir.  Eq.  22; 
Shields  v.  Atkins,  3  Atk.  5G3 ;  Heath  v.  Henly,  1  Ch.  Ca.  26;  Wedderburn 
V.  Wedderburn,  2  Keen,  749 ;  2  My.  &  C.  41  ;  22  Beav.  84 ;  Pomfret  v. 
Winsor,  2  Ves.  484 ;  Bennett  v.  Colley,  2  My.  &  K.  232  ;  Wilson  v.  Moore, 
1  My.  &  K.  146;  Hammond  v.  Hicks,  1  Vern.  432;  Smith  v.  Acton,  26 
Beav.  210;  Bell  v.  Bell,  LI.  &  G.  t.  Plunk.  66;  Butler  v.  Carter,  L.  R.  5 
Eq.  276  ;  Brittlebank  v.  Goodwin,  L.  R.  5  Eq.  545;  Blair  v.  Nugent,  9  Ir. 
Eq.  400;  Lawton  v.  Ford,  L.  R.  2  Eq.  97;  Phillipo  v.  Munnings,  2  My.  & 
C.  309 ;  Gough  v.  Bult,  16  Sim.  323 ;  Norton  v.  Turville,  2  P.  Wms.  144 ; 
Att'y-Gen.  v.  Exeter,  Jac.  448;  Navarre  v.  Rutton,  1  Vin.  Ab.  185;  Ward 
V.  Arch,  12  Sim.  472 ;  Young  v.  Waterpavk,  13  Sim.  204 ;  Sheldon  v. 
Wildman,  2  Ch.  Ca.  26;  Hardwick  w.  Vernon,  4  Ves.  411  ;  14  Ves.  504; 
Ormond  v.  Hutchinson,  13  Ves.  47 ;  Chedworth  v.  Edwards,  8  Ves.  46 ; 
McDonald  v.  McDonald,  1  Bligh,  315  ;  Makepeace  v.  Rogers,  11  Jur.  (n.  s.) 
215  ;  Leed  v.  Beene,  23  Law  Times,  R.  26  ;  Beckford  v.  Wade,  17  Ves.  97  ; 
Decouche  v.  Savetier,  3  John.  Ch.  190;  Baker  v.  Whiting,  3  Sumn.  486; 
Kane  v.  Bloodgood,  7  John.  Ch.  90 ;  Shibla  v.  Ely,  2  Halst.  Ch.  181  ; 
Zacharias  v.  Zacharias,  23  Penn.  St.  425 ;  Prevost  v.  Gratz,  6  Wheat.  481 ; 
Lyon  V.  Maclay,  1  Watts,  275;  Glass  v.  Gilbert,  58  Penn.  St.  266;  Mc- 
Candless's  Est.  61  Penn.  St.  9;  Fox  v.  Cook,  11  Penn.  St.  211 ;  White  v. 
AVhite,  1  Md.  Ch.  53 ;  Thomas  v.  Brinsfield,  7  Ga.  154;  Tinnen  v.  McCane, 
10  Tex.  248 ;  Hopkins  v.  Hopkins,  4  Strob.  Eq.  207 ;  Buckner  v.  Calcott, 
28  Miss.  575 ;  Callis  v.  Folsom,  6  Gill  &  J.  80 ;  Brinkley  v.  Willis,  22  Ark. 
1 ;  Goodrich  v.  Pendleton,  3  John.  Ch.  387 ;  Coster  v.  Murray,  5  John. 
Ch.  522;  20  John.  52;  Allen  «.  Wooley,  1  Green,  Ch.  209;  Manton  v. 
Tltsworth,  18  B.  Mon.  582 ;  Finney  v.  Cochran,  1  W.  &  S.  118  ;  Walker  v. 
Walker,  16  S.  &  R.  379;  McDowell  v.  Goldsmith,  6  Md.  319;  Alexander 
V.  Williams,  1  Hill,  S.  C.  522  ;  Mussey  v.  Mussey,  2  Hill,  Ch.  496;  Burham  v. 
James,  1  Speer,  Eq.  375;  Tucker  w.  Tucker,  1  McCord,  Ch.  176;  Presley 
V.  Davis,  7  Rich.  Eq.  105;  Prewett  v.  Buckingham,  28  Miss.  92;  Soggens 
V.  Heard,  31  Miss.  426;  Payne  v.  Ballard,  23  Miss.  88;  Gay  v.  Edwards, 
30  Miss.  218;  Carter  v.  Bennett,  6  Fla.  214;  Paff  v.  Kenney,  1  Bradf.  1 ; 
Howard  v.  Aiken,  3  McCord,  467;  Wickliffe  v.  Lexington,  11  B.  ]\Ion.  161; 
Smith  V.  Calloway,  7  Blackf.  86 ;  McDonald  v.  Sims,  3  Kelly,  383 ;  Mur- 


1  Beaumont  v.  Boultbee,  6  Ves.  485  ;  Townshend  v.  Townshend,  1  Cox, 
28 ;  Chalmer  v.  Bradley,  1  J.  &  W.  51 ;  Att'y-Gen.  v.  Brewers'  Co.  1  Mer. 
495;  Burrowes  v.  Gore,  6  H.  L.  Ca.  907;  Wood  v.  Arch,  12  Sim.  472; 
Man  V.  Ricketts,  13  L.  J.  (n.  s.)  Ch.  194:  Snow  v.  Booth,  8  De  G.,  M.  & 
G.  69;  Cox  v.  Dolman,  2  De  G.,  M.  &  G.  592;  West  v.  Sloan,  3  Jones, 
Eq.  102. 


§  863.]  AS   BETWEEN   TRUSTEE,    ETC.  493 

trustee  and  cestui  que  trust  are  such  that  the  possession  of  the 
one  is  tlie  possession  of  the  otlier,  and  tlicre  can  be  no  adverse 
chxim  or  possession  during  tlie  continuance  of  the  relation.^ 
Lord  Justice  Knight  Bruce  said,  tliat  where  one  entered  into 
possession  as  trustee,  he  could  not  be  permitted  to  set  up  a 
possession  or  title  in  himself  adverse  to  the  cestui  que  trustP- 
It  is  the  duty  of  the  trustee,  if  he  intends  to  claim  the  estate, 
to  resign  his  trust  and  deliver  over  the  possession  which  he 
received  as  trustee.^  He  will  then  be  in  a  position  to  maintain 
liis  claim,  for  no  claim  sliould  be  made  through  a  breach  of 
trust.  And  no  trustee,  while  occupying  a  place  of  trust  and 
confidence,  should  be  allowed  to  set  up  an  adverse  title.^  This 
rule  applies  to  all  acting  as  trustees,  whether  regularly  ap- 

dock  V.  Hughes,  7  Sm.  &  IMar.  219  ;  Farnum  v.  Brooks,  9  Pick.  212  ;  John- 
son V.  Humphrey,  14  S.  &  R.  394;  Flemming  v.  Culbert,  46  Penn.  St.  496  ; 
Pinston  v.  Ivey,  1  Yerg.  296  ;  Williams  v.  Cook,  1  Green,  Ch.  209 ;  Foscue 
V.  Foscue,  2  Ired.  Eq.  321 ;  Young  v.  Mackall,  3  Md.  Ch.  56 ;  Armstrong 
V.  Campbell,  3  Yerg.  201;  Overstreet  v.  Bates,  1  J.  J.  Marsh.  370;  Thomp- 
son V.  Blair,  3  Murph.  583 ;  Jones  v.  Parsons,  2  Ilawkes,  269  ;  Martin  v. 
Jackson,  27  Penn.  St.  506  ;  North  v.  Barnum,  12  Vt.  20G ;  Goodhue  v. 
Barnwell,  Rice,  Eq.  198;  Redwood  v.  Riddick,  4  Munf.  222;  Wamburzee 
V.  Kennedy,  4  Des.  479;  Anstice  v.  Brown,  6  Paige,  488;  Bohannon  u. 
Strespley,  2  B.  Mon.  438;  Pinkston  v.  Brewster,  14  Ala.  315;  Boone  v. 
Chiles,  10  Pet.  177;  Oliver  v.  Piatt,  3  How.  333;  Zeller  v.  Eckert,  4  How. 
289 ;  Seymour  v.  Freer,  8  Wall.  203  ;  Creigh  v.  Henson,  10  Grat.  231  ; 
Starke  v.  Starke,  3  Rich.  438;  Perkins  v.  Cartwell,  4  Harring.  270;  Varick 
V.  Edwards,  11  Paige,  289;  Blount  v.  Robeson,  3  Jones,  Etp  73;  Fish  v. 
Wilson,  15  Tex.  430;  Cunningham  v.  McKindley,  22  Md.  149  ;  Kutz's  App. 
40  Penn.  St.  90;  Norton  v.  Ladd,  22  Conn.  203;  Long  v.  Casson,  4  Rich. 
Eq.  60  ;  Parris  v.  Cobb,  5  Rich.  Eq.  432  ;  Keaton  v.  Greenwood,  8  Ga. 
97  ;  Simmes  v.  Smith,  11  Ga.  195;  Kimball  v.  Ives,  17  Vt.  430;  Rix  v. 
Smith,  8  Vt.  55  ;  Evarts  v.  Nason,  11  Vt.  122;  Mather  v.  Bennett,  21  N.  H. 
204. 

1  Ibid.  2  Stone  v.  Go.lfrey,  5  De  G.,  M.  &  G.  86. 

^  Ibid. ;  Att'y-Gen.  v.  Munro,  2  De  G.  &  Sm.  163;  Ex  parte  Andrews, 
2  Rose,  412 ;  Kennedy  v.  Daly,  1  Sch.  &  Lef.  381 ;  Shields  v.  Atkins,  3 
Atk.  560;  Pomfret  v.  Winsor,  2  Ves.  476;  Conry  v.  Caulfield,  2  B.  &  B. 
272;  Langley  v.  Fisher,  9  Beav.  90;  Reece  v.  Trye,  1  De  G.  &  Sm.  279; 
Newsome  v.  Flowers,  30  Beav.  461  ;  Frith  v.  Curtland,  2  Hem.  &  M.  417  ; 
Huntly  V.  Huntly,  8  Ired.  Etj.  250. 

*  Ibid. 


494  STATUTE   OF   LIMITATIONS.  [CHAP.  XXYIII. 

pointed  or  not.'^  It  also  applies  to  all  who  stand  in  a  fidu- 
ciary relation  to  others,  as  executors,  administrators,  guardians, 
or  agents.^  A  cestui  que  trust  cannot  set  up  the  statute  against 
his  co-eestuis  que  ti'ust,^  nor  against  his  trustee.*  If  one  holds 
the  title  to  land  as  security  for  money,  and  the  money  is  paid 
to  him  and  received,  he  cannot  plead  the  statute  as  a  bar  to 
a  bill  for  a  reconveyance.^  These  rules  apply  to  all  cases  of 
express  trusts.^ 

§  864.  It  has  been  held,  however,  that  if  a  trustee  repudiates 
the  trust  by  clear  and  unequivocal  acts  or  words,  and  claims 
thenceforth  to  hold  the  estate  as  his  own,  not  subject  to  any 
trust,  and  such  repudiation  and  claim  are  brought  to  the  notice 
or  knowledge  of  the  cestui  que  trust  in  such  manner  that  he  is 
called  upon  to  assert  his  equitable  rights,  the  statute  will  begin 

'  Lyon  V.  Maclay,  1  Watts,  275;  Life  Asso.  ».  Siddall,  3  De  G.,  F.  &  J. 
58;  7  Jur.  (n.  s.)  785;  Johnson  v.  Smith,  27  Mo.  591,  is  to  the  contrary; 
Hayden  v.  Stone,  1  Duvall,  396. 

2  Pelley  v.  Bascombe,  33  L.  J.  Ch.  100;  34  L.  J.  Ch.  233;  Thomas  v. 
Thomas,  2  K.  &  J.  79 ;  Lindsay  v.  Lindsay,  1  Des.  150 ;  Can-  v.  Bob,  7 
Dana,  417 ;  Bhie  v.  Patterson,  1  Dev.  &  Bat.  Eq.  457 ;  Bird  v.  Graham,  1 
Ired.  Eq.  196;  Nelson  v.  Cornwall,  1  Grat.  174;  LafFerty  v.  Farley,  3 
Sneed,  157 ;  Jacobs  v.  Pou,  18  Ga.  346 ;  Marsh  v.  Oliver,  1  McCart.  259 ; 
Brittlebank  v.  Goodwin,  L.  R.  5  Eq.  545;  Hart's  App.  32  Conn.  520;  Butler 
V.  Carter,  L.  R.  6  Eq.  276 ;  Moore  v.  Sheppard,  2  Duv.  125.  Some  States 
have  statutes  that  bar  claims  against  executors  and  administrators  after  a 
certain  time ;  and  in  nearly  all  the  States  a  presumption  of  payment  of 
debts,  legacies,  and  other  charges,  will  arise  after  a  great  length  of  time. 
Angell  on  Limitations,  §§  166,  178;  Wilkinson's  Est.  1  Pars.  Eq.  170; 
Graham  v.  Torrance,  1  L-ed.  Eq.  210;  Shearin  v.  Eaton,  2  Ired.  Eq.  282; 
Hudson  V.  Hudson,  3  Rand.  117;  Skinner  v.  Skinner,  1  J.  J.  Marsh.  594; 
Graham  v.  Davidson,  2  Dev.  &  B.  155;  Hayes  v.  Goode,  7  Leigh,  452; 
Tute  V.  Connor,  2  Dev.  Eq.  244. 

■'  Foscue  V.  Foscue,  2  L-ed.  321. 

*  Spickernell  v.  Hotham,  1  Kay,  6G9 ;  Knight  v.  Bowyer,  4  De  G.  &  J. 
421. 

*  Millard  v.  Hathaway,  27  Cal.  119. 

«  Manby  v.  Bewicke,  3  K.  &  J.  342 ;  Dickenson  i'.  Teasdale,  1  De  G., 
J.  &  Sm.  52;  Sturgis  v.  Morse,  3  De  G.  &  J.  1 ;  Watson  v.  Saul,  1  Gif. 
188;  Webster  v.  Newbold,  41  Penn.  St.  482. 


§§  863,  864.]  AS   BETWEEN   TRUSTEE,    ETC.  495 

to  run  from  the  time  that  snch  knowledge  is  brought  home  to 
the  cestui  que  truHt,  and  he  will  be  completely  barred  at  the  end 
of  twenty  years,  if  he  has  been  sid  juris,  or  under  no  disability, 
and  is  capable  of  bringing  an  action  to  maintain  his  right.^ 
To  enable  a  trustee,  without  giving  up  the  possession,  to  turn 
it  into  an  adverse  holding  against  the  cestui  que  trust,  the  evi- 
dence must  be  clear  and  unmistakable,  and  such  adverse  claim 
must  be  brought  home  to  the  cestui  que  trust  beyond  question 
or  doubt.  The  attitude  of  the  trustee  must  be  hostile,  and 
continuously  so ;  and  there  must  be  no  mistake  or  misappre- 
hension as  to  the  character  of  his  holding,  by  either  party .^ 
Where  the  trustee  makes  a  conveyance  of  the  trust  property  in 
breach  of  the  trust,  and  his  grantee  continues  to  hold  adversely, 
the  statute  applies  ;  -^  and  so  where  the  relation  of  trustee  and 
cestui  que  trust  is  absolutely  ended,  whether  by  breach  of  the 
trust  or  otherwise.^  But  in  such  case  the  statute  will  not  begin 
to  run  so  long  as  the  cestui  que  trust  is  under  the  control  or  in- 
fluence of  the  trustee.^  Where  a  trustee  paid  over  the  trust 
fund  to  a  married  woman,  the  statute  began  to  run  as  soon  as 
she  became  discovert.^      So  where  the  trustee  paid  over  the 

^  Merriam  v,  Hassam,  14  Allen,  522;  Baker  v.  Whiting,  3  Sunin.  486; 
Kane  v.  Bloodgood,  7  John.  Ch.  90;  Att'y-Gen.  v.  Federal  St.  Meeting- 
house, 3  Gray,  1 ;  Bright  v.  Egerton,  2  De  G.,  F.  &  J.  606 ;  Wedderburn 
V.  Wedderhurn,  2  Keen,  749 ;  4  M.  &  Cr.  52 ;  Portlock  t".  Gardner,  1  Hare, 
694;  WiekliiFe  v.  Lexington,  11  B.  Mon.  161;  Turner  v.  Smith,  11  Tex. 
629;  Grumbles  v.  Grumbles,  17  Tex.  472;  Williams  v.  First  Presby.  Soc. 
1  Ohio  St.  478;  Robertson  v.  Wood,  15  Tex.  1;  Halsey  v.  Tate,  52  Penn. 
St.  311;  Hunter  v.  Hubbard,  26  Tex.  537;  Curtis  v.  Daniel,  23  Ark.  363; 
Neel  V.  McElhenny,  69  Penn.  St.  300;  Hubbell  v.  Medbury,  53  N.  Y.  98. 

*  Ibid.;  Zeller  v.  Eekert,  4  How.  295;  Whithead  v.  Lord,  11  Eng. 
L.  &  Eq.  587;  Scott  v.  Haddock,  11  Ga.  258;  Mofiatt  v.  Bingham,  11 
Humph.  369;  Lister  v.  Pickford,  34  L.  J.  Ch.  582;  Cunningliam  v.  ^IcKiiul- 
ley,  22  Md.  149;  Andrews  v.  Smithwick,  20  Tex.  Ill;  White  r.  Leavitt, 
20  Tex.  703 ;  Lewis  v.  Castlemnn,  27  Tex.  407. 

8  Williams  r.  First  Presby.  Soc.  1  Ohio  St.  478;  White  v.  White,  1  Md 
Ch.  56. 

*  Wickliffe  v.  Lexington,  11  B.  Mon.  161. 

*  Welborn  v.  Rogers,  24  Ga.  558;  Keaton  v.  McGwier,  24  Ga.  217. 
'  Harrison  v.  Brolaskey,  20  Penn.  St.  299. 


496  STATUTE    OF    LIMITATIONS.  [CHAP.  XXVIII. 

trust  fund  to  a  minor  cestui  que  trust,  and  denied  all  further 
liability,  the  statute  began  to  run  as  soon  as  the  minor  became 
of  age.^  After  the  lapse  of  twenty  years,  no  claim  or  complaint 
having  been  made,  the  court  will  presume  that  a  trustee  per- 
formed his  duty .2 

§  865.  It  has  been  urged  that  the  statute  cannot  apply  in 
favor  of  persons  who  become  trustees  by  construction  of  law ; 
as,  where  a  person  is  construed  into  a  trustee  of  property 
■which  he  has  fraudulently  obtained,  or  where  a  trust  estate  is 
traced  into  his  hands,  or  where  a  resulting  trust  arises ;  and 
that  the  cestui  que  trust  is  not  precluded,  in  such  cases,  from 
his  remedy  by  lapse  of  time.  But  the  later  authorities  estab- 
lish the  doctrine  that  the  statute  applies  in  such  cases.^  Lord 
Redesdale,  after  stating  the  ground  upon  which  a  direct  trust 
was  not  within  the  statute,  said  :  "  But  the  question  of  fraud  is 
of  a  very  different  description  ;  that  is  a  case  wdiere  a  person, 
who  is  in  possession  by  virtue  of  a  fraud,  is  not,  in  the  ordinary 
sense  of  the  word,  a  trustee,  but  is  to  be  constituted  a  trustee 
by  a  decree  of  a  court  of  equity  founded  on  the  fraud  ;  and  his 
possession  in  the  mean  time  is  adverse  to  the  title  of  the  per- 
son who  impeaches  the  transaction  on  the  ground  of  fraud."  ^ 

1  SoUee  V.  Croft,  7  Rich.  Eq.  34. 

2  Syester  v.  Brewer,  27  Md.  288. 

3  McClane  v.  Shepherd,  21  N.  J.  Eq.  76;  Strimfler  v.  Eoberts,  18  Penn. 
St.  300;  Prevost  v.  Gratz,  6  Wheat.  480;  Sheppards  v.  Turpin,  3  Grat. 
373;  Murdoch  v.  Hughes,  7  Sm.  &  M.  219  ;  Cuyler  v.  Bradt,  2  Caine's  Gas. 
326 ;  Davis  v.  Cotton,  2  Jones,  Eq.  430 ;  Cunningham  v.  McKindley,  22 
Md.  149;  Marrion  w.  Titsworth,  18  B.  Mon.  582;  Howell  v.  Howell,  15 
Wis.  55;  Townshend  v.  Towiishend,  1  Bro.  Ch.  550;  Bonney  v.  Ridgard, 
1  Cox,  145;  Andrew  v.  Wrigley,  4  Bro.  Ch.  125;  Collard  v.  Hare,  2  R.  & 
M.  675;  Cholmondeley  v.  Clinton,  2  J.  &  AV.  190;  4  Bligh,  4  ;  Bell  v.  Bell, 
t.  Plunk.  661;  Portlock  v.  Gardner,  1  Hare,  594;  Ex  parte  RtLseW,  3  Y.  & 
Col.  622;  Wedderburn  v.  Wedderburn,  4  My.  &  C.  53  ;  Att'y-Gen.  v. 
Christ  Hospital,  3  My.  &  K.  344;  Rolfe  v.  Gregory,  11  Jur.  (n.  s.)  98; 
4  De  G.,  J.  &  S.  576. 

••  Hovendon  v.  Annesley,  2  Sch.  &  Lef.  633 ;  Wilmerdlng  v.  Russ,  33 
Conn.  67;  Best  v.  Campbell,  62  Penn.  St.  476;  Ashurst's  App.  60  Penn. 
St.  290. 


§§  864-866.]       PRESUMPTIONS   FROM   LAPSE    OF   TIME.  497 

Sir  William  Grant  made  similar  observations. ^  But  if  the 
injured  parties  are  minors  or  persons  under  disability,  time 
will  not  run  against  them,^  nor  if  they  are  under  the  influence 
or  control  of  a  former  guardian  or  trustee.^ 

§  866.  Courts,  in  many  cases,  presume  acts  to  have  been 
done  after  a  great  length  of  time,  as,  that  payments  have  been 
made,  releases  and  conveyances  executed,  or  rights  abandoned.* 
As  a  general  rule,  they  adopt  the  statute  bar  at  law  as  the 
period  at  the  end  of  which  they  will  give  effect  to  such  presump- 
tions.^ The  presumptions  are  made,  in  the  absence  of  evidence, 
for  the  purpose  of  quieting  titles,*"  and  because  there  is  no  better 
ground  to  go  upon.'''  If  positive  evidence  is  produced,  the  fact 
may  be  found  or  presumed  after  a  much  shorter  period.  On 
the  other  hand,  if  there  is  positive  evidence  which  negatives 
the  fact,  the  presumption  cannot  be  made  after  a  much  longer 
period  ;  for  the  rule  is,  stahit  prcesumptio  donee  prohelur  in  con- 
trarium.  Presumptions,  after  a  long  lime,  are  favored  in  law  ; 
and  courts  will  not  allow  them  to  be  controlled  or  rebutted  by 
slight  evidence,  or  doubtful  circumstances.^  In  cases  where  a 
possession  may  be  lawful  and  rightful,  it  cannot  be  presumed 
to  be  adverse.  Thus  one  tenant  in  common  cannot  be  pre- 
sumed to  hold  adversely  to  the  other,  unless  something  more 

'  Bockford  v.  Wade,  17  Ves.  97.  But  see  Sturgis  v.  Morse,  3  De  G.  & 
J.  1 ;  Taylor  v.  Goodie,  4  Jones,  L.  436.  See  aiite,  §§  141,  228,  229,  230, 
and  cases  cited,  *  Miles  v.  Wheeler,  43  111.  123. 

^  Hayden  v.  Stone,  1  Duv.  39G. 

••  Tattison  v.  llawkesworth,  10  Bcav.  375;  Att'y-Gen.  v.  Moor,  10  Boav. 
119;  CleuK-nston  v.  Williams,  H  Cranch,  72;  Jackson  v.  Sackett,  7  Wend. 
94;  Bass  v.  Williams,  8  Pick.  187;  Asburst's  App.  60  Penn.  St.  290  ;  Scott 
V.  Knox,  4  Ir.  Eq.  411. 

*  Eldridge  v.  Knott,  Cowp.  214. 

«  Ibid.;  Grcnfell  v.  Girdlestone,  2  Y.  &  Col.  682;  Magdalen  College  t'. 
Att'y-(ren.  3  Jur.  (x.  s.)  675. 

^  Ibid.;  Hillary  i'.  Waller,  12  Ves.  266;  Hawkins  v.  Chapman,  36  Md. 
100. 

"  Jones  V.  Turberville,  2  Ves.  Jr.  13;  Grenfell  o.  Girdlestone,  2  Y.  & 
Col.  682. 

VOL.  II  32 


498  LAPSE   OP   TIME.  [CHAP.  XXVIII. 

is  shown  than  mere  lapse  of  time.  A  trustee  cannot  l^e  pre- 
sumecl  to  hold  adversely  to  his  cestui  que  trust :  on  the  con- 
trary, he  is  presumed  to  hold  for  his  cestui  que  trust  until  the 
contrary  appears.^ 

§  867.  It  is  clear  that  a  person,  in  ignorance  of  his  right, 
cannot  be  presumed  to  have  abandoned  it,^  especially  if  there 
is  a  fraudulent  concealment  of  the  cause  of  action  by  the  guilty 
party.^  One  under  disability  cannot  be  presumed  to  have 
released  a  right."*  If  persons  are  in  poverty  or  distress,  the 
force  of  the  presumption  is  weakened.^  So  a  release  from  a 
large  number  of  persons  cannot  be  presumed  with  the  same 
force ;  for  where  interests  are  divided,  they  are  not  prosecuted 
with  the  same  diligence.*" 

§  868.  When  a  defendant  relies  upon  lapse  of  time,  or  upon 
presumptions  arising  therefrom,  but  not  upon  the  absolute  bar 
of  the  statute,  he  must  plead  or  answer  the  facts.  He  cannot 
protect  himself  by  demurrer." 

1  Harmood  v.  Oglander,  6  Ves.  199;  8  Ves.  106;  Doe  i'.  Phillips,  10 
Q.  B.  130;  Young  v.  Waterplank,  13  Sim.  201;  Garrard  v.  Tuck,  8  C.  B. 
248;  Mellingw.  Leak,  16  C.  B.  652;  Creigli  v.  Henson,  10  Grat.  231:  Col- 
■vin  V-  Menefee,  11  Gratt.  92;  Whiting  v.  AVhiting,  4  Gray,  237. 

2  Cholmondeley  v.  Clinton,  2  Mer.  362;  Randall  v.  Errington,  10  Ves. 
427;  Roche  v.  O'Brien,  1  B.  &  B.  330;  Pickering  v.  Stamford,  2  Ves.  Jr. 
280,  585;  Chalmer  v.  Bradley,  1  J.  &  W.  65;  Bennett  v.  Colley,  2  My.  & 
K.  232;  Stone  v.  Godfrey,  5  De  G.,  M,  &  G.  76;  Blennerhassett  w.  Day, 

2  B.  &  B.  118;  Stackpole  v.  Daveron,  1  Bro.  P.  C.  1. 

3  Pilcher  v.  Flinn,  30  Ind.  202. 

*  March  v.  Russell,  3  M.  &  Cr.  31 ;  Bennett  v.  Colley,  5  Sim.  181 ;  2 
My.  &  K.  225;  Thompson  v.  Simpson,  1  Dr.  &  W.  489. 

°  Roche  V.  O'Brien,  1  B.  &  B.  342;  Hillary  v.  Waller,  12  Ves.  26G; 
Gowland  v.  De  Faria,  17  Ves.  25 ;  Byrne  v.  Frere,  2  Moll.  171. 

^  Whichcote  v.  Lawrence,  3  Ves.  740 ;  6  Ves.  632 ;  York  v.  Mackenzie, 

3  Bro.  P.  C,  42;  Att'y-Gen.  v.  Duley,  Coop.  146;  Pinkston  v.  Brewster, 
14  Ala.  320;  Kidney  v.  Coussmaker,  12  Ves.  158;  Hardwick  v.  Mynd,  1 
Anst.  109 ;  Elliott  v.  Merryman,  2  Atk.  42  ;  Hercy  v.  Dinwoody,  2  Ves. 
Jr.  87.     See  chapter  on  Charitable  Trusts. 

^  Deloraine  v.  Browne,  3  Bro.  Ch.  633 ;  ]\Iitf.  on  Plead.  212.  See 
Story's  Eq.  Plead.  §§  503,  751,  814. 


§§  866-869.]  PUBLIC  policy.  499 

§  869.  Courts  of  equity  will  sometimes  refuse  to  grant  relief, 
although  the  statute  of  limitations  cannot  be  pleaded  in  bar, 
and  although  presumptions  cannot  arise  from  lapse  of  time,  or 
may  be  conclusively  rebutted.  In  such  cases,  courts  proceed 
upon  the  ground  that  the  public  convenience  w\\\  not  allow  old  and 
stale  claims  to  be  investigated,  when  many  of  the  parties  and 
witnesses  are  dead,  or  their  memories  impaired,  and  vouchers 
are  lost.  Expedit  reipublicce  ut  dt  finis  litium}  Thus,  where 
a  bill  was  brought  against  an  executor  for  an  account,  there 
being  no  statute  protection,  and  the  presumption  of  a  final 
settlement  being  rebutted,  tlie  court  refused  to  open  the  ac- 
counts after  a  great  lapse  of  time,  when  it  was  prol)able  that 
most  of  the  parties  were  dead,  and  the  vouchers  and  receipts 
were  lost.^  Mere  lapse  of  time  or  delay  in  suing  is  such  laches 
in  the  plaintiff,  in  a  certain  class  of  cases,  that  he  is  not 
entitled  to  relief,  unless  he  can  explain  the  delay.  Thus,  if  a 
cestui  que  trust  attempts  to  impeach  a  purchase  of  the  trust 
estate  by  the  trustee,  a  delay  for  much  less  than  twenty  years 
will  bar  his  relief.^  In  a  bill  to  set  aside  a  purchase  made  by 
a  solicitor  of  the  party,*  or  to  set  aside  the  sale  of  a  reversion 
by  an  heir  expectant,^  or  to  impose  a  constructive  trust  upon  a 
fraudulent  purchaser,*^  or  to  call  a  tenant  to  an  account  for 

'  Att'y-Gen.  v.  Exeter,  Jac.  448;  Pickering  v.  Stamford,  2  Ves.  Jr.  272, 
582;  Parkes  v.  White,  11  Ves.  226;  Morse  v.  Royal,  12  Ves.  374;  Price  v. 
Byrn,  cited  in  Campbell  v.  Walker,  5  Ves.  681;  Barvvell  v.  Barwell,  34 
Beav.  871 ;  McKnigbt  v.  Taylor,  1  How.  161 ;  Piatt  v.  Vattier,  9  Pet.  466 ; 
Thompson  v.  McGaw,  2  Watts,  161 ;  Price's  App.  54  Pcnn.  St.  472. 

2  Hunton  v.  Davies,  2  Ch.  R.  44;  Huet  v.  Fletcher,  1  Atk.  457;  Pear- 
son V.  Belchier,  4  Ves.  627;  Hercy  v.  Dinwoody,  2  Ves.  Jr.  87;  St.  John 
V.  Turner,  2  Vern.  418;  Campbell  v.  Graham,  1  R.  &  M.  453;  Pomfret  v. 
Winsor,  2  Ves.  483;  Anderson  v.  Biirwell,  6  Gratt.  405;  Smith  v.  Calloway, 
7  Black.  86. 

8  Parkes  v.  White,  11  Ves.  226;  Barwell  v.  Barwell,  34  Beav.  371; 
Morse  v.  Royal,  12  Ves.  374;  Price  v.  Byrn,  cited  in  Campbell  v.  Walker, 
5  Ves.  681. 

•■  Gresley  v.  Mansley,  4  De  G.  «&  J.  78  ;  Lyddon  v.  Moss,  4  De  G.  *&  J.  104. 

*  Roberts  v.  Tunstall,  4  Hare,  257. 

*  Glegg  V.  Edmondson,  3  Jur.  (n.  s.)  299 ;  Norris  v.  Le  Neve,  3  Atk. 


600  ACQUIESCENCE.  [CHAP.  XXVIII. 

waste,^  or  to  enforce  the  specific  performance  of  a  contract,^  or 
wliere  fraud  is  alleged  to  avoid  the  statute  of  limitations,^  or 
where  an  account  is  sought  by  a  surviving  partner/  and  in  a 
large  number  of  other  cases,  courts  refuse  to  interfere  actively 
after  a  considerable  lapse  of  time,  if  the  delay  is  unexplained 
by  the  party  seeking  relief.^  But  in  cases  of  mere  dry  equi- 
table demands,  falling  within  the  purview  of  some  of  the  pro- 
visions of  the  statute  of  limitations,  general  laches  short  of  the 
statutory  period  ought  not  to  bar  a  plaintiff,  for  the  reason 
that  the  legislature  has  prescribed  a  period  which  it  deems 
sufBciently  short  for  private  and  public  convenience,  and  courts 
ought  not  to  assume  the  power  of  abridging  that  period.^ 

§  870.  But  acquiescence  in  a  transaction  may  bar  a  party  of 
his  relief  in  a  very  short  period.  Thus,  if  one  has  knowledge 
of  an  act,  or  it  is  done  with  his  full  approbation,  he  cannot 
afterwards  have  relief.  He  is  estopped  by  his  acquiescence, 
and  cannot  undo  that  which  has  been  done."  So  if  a  party 
stands  by,  and  sees  another  dealing  with  property  in  a  manner 
inconsistent  with  his  rights,  and  makes  no  objection,  he  cannot 

38;  Pennell  v.  Home,  3  Drew.  337;  Jackson  v.  Welsh,  LI.  &  G.  t.  Plunk, 
346.     See  Amb.  735,  737. 

1  Harcourt  v.  White,  28  Beav,  303. 

*  Southcomb  v.  Exeter,  6  Hare,  214;  Alloway  v.  Braine,  26  Beav.  575; 
Sharp  V.  Wright,  28  Beav.  150;  Hope  v.  Gloucester,  1  Jur.  (n   s.)  320. 

3  Blair  v.  Ormond,  1  De  G.  &  Sm.  428. 

*  Tatam  v.  Williams,  3  Hare,  347 ;  Harcourt  v.  White,  28  Beav.  303. 

*  Gresley  r.  Mansley,  4  De  G.  «&  J.  95 ;  Roberts  v.  Tunstall,  4  Hare, 
266;  Browne  v.  Crosse,  14  Beav.  105 ;  Life  Assoc,  v.  Siddall,  3  De  G.,  F.  & 
J.  73;  Hawkins  v.  Chapman,  36  Md.  100;  Hanson  v.  Worthington,  12  Md. 
441;  Glenn  v.  Hill,  17  Md.  281;  Nelson  v.  Hagerstown  Bank,  27  Md.  51; 
Badger  v.  Badger,  2  Wall.  87. 

^  Rochdale  Canal  Co.  v.  King,  2  Sim.  (n.  s.)  89;  Penny  i'.  Allen,  7  De 
G.,  M.  &  G.  426;  Mehrtens  v.  Andrews,  3  Beav.  76;  Leeds  v.  Amherst,  2 
Phil.  117;  Clarke  v.  Hart,  6  H.  L.  Ca.  633;  Beaiidry  v.  Montreal,  11  Moore, 
P.  C.  C.  399;  Story  v.  Gape,  2  Jur.  (N.  s.)  706. 

T  Kent  V.  Jackson,  14  Beav.  384;  Styles  v.  Guy,  1  H.  &  Tw.  523;  Ex 
parte  Morgan,  1  H.  &  Tw.  328  ;  Graham  v.  Birkenhead  Railw.  Co.  2  Mac. 
&  Gor.  146. 


§§  869-871.]        HOW   FAR   BACK   ACCOUNTS    MAY   RUN.  501 

afterwards  have  relief.  Uis  silence  permits  or  encourages  others 
to  part  with  their  money  or  property,  and  he  cannot  complain 
that  his  interests  are  affected.  His  silence  is  acquiescence,  and 
it  estops  hini.^ 

§  871.  Questions  sometimes  arise  as  to  how  far  back  courts 
of  equity  will  order  an  account  of  the  mesne  rents  and  profits 
to  be  taken.  Where  the  cestui  que  trust  seeks  an  account  of 
rents  and  profits  from  an  express  trustee,  there  is  no  limitation 
of  time,  as  the  statute  of  limitations  does  not  apply .^  If  the 
claim  to  rents  and  profits  rests  upon  a  legal  title,  the  remedy  is 
at  law,  and  the  legal  limitation  must  be  applied.'^  If,  however, 
in  such  case,  the  accounts  are  complicated,  a  court  of  equity 
may  entertain  jurisdiction  to  take  the  accounts ;  but  the  legal 
limitation  of  time  will  be  adhered  to.*  Accounts  may  be  taken 
in  equity  upon  a  legal  title  respecting  mines  and  timber  when 
an  injunction  is  prayed  for,  but  the  legal  limitation  will  be  ap- 
plied.°  An  infant  may  have  a  bill  for  an  account  upon  a  legal 
title,  as  every  person  entering  upon  an  infant's  lands  is  regarded 
in  the  light  of  a  receiver  for  him,  and  this  jurisdiction  remains, 
though  the  bill  is  not  filed  until  after  his  majority.*^     If,  how- 

'  Leeds  v.  Amherst,  2  Pliil.  123;  PliilHpson  v.  Gatly,  7  Hare,  523; 
Stafford  v.  Stafford,  1  De  G.  &  J.  202 ;  Jorden  v.  Money,'5  II.  L.  Ca.  185 ; 
Rennie  v.  Young,  2  De  G.  &  J.  142. 

2  Att'y-Gen.  v.  Brewers'  Co.  1  Mer.  498 ;  Matthew  v.  Brise,  14  Beav. 
341. 

^  Jesus  College  v.  Bloom,  3  Atk.  2r)2;  Dinwiddle  v.  Bailey,  G  Ves.  136; 
Taylor  v.  Crompton,  Bunb.  9.3  ;  Landsdowne  v.  Landsdownc,  1  Mad.  137. 

*  O'Connor  v.  Spaight,  1  Sch.  &  Lef.  309;  Corp.  of  Carlisle  v.  Wilson, 
13  Ves.  276. 

*  Winchester  v.  Knight,  1  P.  AVms.  406 ;  Pulteney  v.  Warren,  6  Ves. 
89;  Landsdowne  v.  Landsdowne,  1  Mad.  116  ;  Parrott  v.  Palmer,  3  ^ly.  & 
K.  632;  Jesus  College  v.  Bloom,  3  Atk.  262 ;  Oxford  v.  Richardson,  6  Ves. 
701 ;  (irierson  v.  Eyre,  9  Ves.  346;  Garth  v.  Cotton,  1  Dick.  211 ;  Lee  v. 
Alston,  1  Bro.  Ch.  194. 

«  Gardner  v.  Fell,  1  J.  &  W.  22 ;  Roberdean  v.  Rouse,  1  Atk.  643 ; 
Yallop  V.  Halworthy,  1  Eq,  Ca.  Ab.  7 ;  Newburgh  v.  Bickerstaffo,  1  Vern. 


502  HOW  FAR  BACK  ACCOUNTS  MAY  RUN.      [CHAP.  XXVIII. 

ever,  the  infant  has  never  had  the  possession,  but  it  has  always 
been  held  adversely  to  him,  the  remedy  is  at  law.^  So,  after 
the  death  of  a  receiver  of  the  rents  and  profits,  a  party  entitled, 
although  he  had  a  remedy  at  law,  may  have  a  bill  for  an  account 
of  the  assets,^  The  legal  limitation  in  these  cases  is  six  years, 
or  such  other  period  as  the  statutes  in  the  several  States  have 
established.^  But  if  a  party  has  simply  lost  his  plain  remedy 
at  law  by  some  other  event,  he  cannot  invoke  the  aid  of  a  court 
of  equity."^  If,  however,  a  party  loses  his  remedy  at  law  by 
mistake,  he  may  have  an  account  in  equity ;  for  mistake  is  one 
of  the  heads  of  equity  jurisdiction.^  So  if  the  remedy  at  law 
was  lost  by  the  fraud  of  the  defendant,^  or  by  other  fault  of  his,'^ 
equity  can  give  relief,  and  an  account ;  but  the  legal  limitations 
must  be  observed.^ 

295;  Curtis  v.  Curtis,  2  Bro.  Ch.  631;  Dormer  v.  Fortescue,  3  Atk.  130; 
Pulteney  v.  Warren,  6  Ves.  89;  Morgan  v.  Morgan,  1  Atk.  489;  Falkland 
V.  Bertie,  2  Vera.  342  ;  Doe  v.  Keen,  7  T.  R.  390  ;  Hicks  v.  Sallitt,  3  De 
G.,  M.  &  G.  782;  Pascal  v.  Swan,  27  Beav.  508;  Blomfield  v.  Eyre,  8 
Beav.  250.  But  he  must  bring  his  bill  within  six  years  after  his  majority. 
Lockey  v.  Lockey,  Pr.  Ch.  518. 

'  Crowther  v.  Crowther,  23  Beav.  305. 

«  Monypenny  v.  Bristow,  2  R.  &  M.  117;  Gardners.  Fell,  1  J.  &  W. 
22;  Thomas  v.  Oakley,  18  Ves.  186;  Landsdowne  v.  Landsdowne,  1  Mad. 
116. 

^  Monypenny  v.  Bristow,  2  R.  &  M.  125. 

"•  Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  71 ;  Hutton  v.  Simpson,  2  Vera. 
722 ;  Norton  v.  Frecker,  1  Atk.  525 ;  Pulteney  v.  Warren,  6  Ves.  88. 

°  Bolton  V.  Deane,  Pr.  Ch.  516 ;  Dormer  v.  Fortescue,  Ridg.  t.  Hardw, 
183 ;  Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  68. 

«  Ibid.;  Bennett  v.  Whitehead,  3  P.  Wms.  644. 

'  Pulteney  v.  Warren,  6  Ves.  73.  See  Dormer  v.  Fortescue,  3  Atk. 
124;  Reads  v.  Reade,  5  Ves.  744;  3  Atk.  336;  Edwards  v.  Morgan, 
McClel.  541 ;  Reynolds  v.  Jones,  2  8.  &  S.  206;  Thomas  v.  Thomas,  2  K. 
&  J.  85;  Agar  v.  Fairfax,  17  Ves.  552;  Moor  v.  Black,  t.  Talb.  126; 
Mundy  v.  Mundy,  2  Ves.  Jr.  122;  D'Arcy  i'.  Blake,  2  Sch.  &  Lef.  387; 
Wild  V.  Wells,  1  Dick.  3 ;  Meggott  v.  Meggott,  1  Dick.  794 ;  Goodenough 
V.  Goodenough,  2  Dick.  798;  Tilly  v.  Bridges,  Pr.  Ch.  252;  Owen  v. 
Aprice,  1  Ch.  R.  32. 

8  Ibid. 


§§  871,  872.]       HOW   FAR   BACK    ACCOUNTS   MAY   RUN.  503 

§  872.  Where  a  party  is  rightfully  seeking  the  possession  of 
property,  the  court,  if  the  plaintiff  prevails,  will  order  an  account 
of  the  rents  and  profits,  as  incident  to  the  relief.  If  the  plaintiff 
is  a  cesUd  que  trust,  following  the  trust  estate  into  the  hands  of 
a  person  claiming  through  the  trustee,  under  such  circumstances 
that  the  defendant  himself  is  to  be  regarded  as  a  trustee,  the 
plaintiff  will  be  entitled  to  an  account  of  the  rents  and  profits 
from  the  commencement  of  his  title,  or  from  the  withholding 
of  his  rights  by  the  defendant.^  The  case  will  be  much  stronger 
if  the  plaintiff  is  an  infant,  or  there  has  been  any  fraud  or  con- 
cealment.^ But  if  the  plaintiff  is  not  a  cestui  que  trust,  but  is 
an  equitable  oivner  merely,  seeking  to  recover  the  estate  against 
a  bona  fide  adverse  holder  of  the  possession,  the  account  will 
not,  unless  there  are  special  circumstances,  be  carried  back  of 
six  years,  where  that  is  the  statute  limitation,  or  to  the  incej> 
tion  of  the  title  within  that  time.^  This  was  the  rule  in  the 
earlier  cases  ;  but  the  later  cases  determine  that  where  there  is 
no  trust,  infancy,  fraud,  nor  concealment,  the  accounts  will  not 
be  carried  back  beyond  the  filing  of  the  bill,'*  unless  there  was 
a  previous  demand  for  the  possession,  in  which  case  they  may 
be  carried  back  to  the  time  of  the  demand.^  In  one  case,  where 
the  plaintiff  was  an  infant,  and  the  defendant  a  trustee  in  fact, 
but  ignorant  of  his  character,  the  court  refused  to  carry  the 
accounts  further  back  than  the  filing  of  the  bill.^     If  the  plain- 

'  Barnwall  v.  Baniwall,  3  Ridg.  P.  C.  G6 ;  Stur-is  t'.  ]\Iorse,  ,3  De  G.  & 
J.  1 ;  24  Ik'av.  51;  Wright  v.  Chard,  4  Drew.  G73;  Kidney  v.  Coussmaker, 
12  Vcs.  158. 

2  Hicks  V.  Sallitt,  3  De  G.,  M.  &  G.  782;  Schroder  v.  Schroder,  Kay, 
691;  Pascoe  v.  Swan,  27  Beav.  508;  ante,  §  871. 

'  Dormer  v.  Fortescue,  Ridg.  t.  Hardw.  183 ;  3  Atk.  130 ;  Hobson  v. 
Trevor,  2  P.  Wms.  191 ;  Coventry  v.  Hall,  2  Ch.  Ca.  134 ;  Reade  v.  Reade, 
5  Ves.  749;  Harmood  v.  Oglander,  (5  Ves.  215;  Drumniond  v.  St.  Albans, 
5  Vcs.  439;  Stackhouse  v.  Barnston,  10  Ves.  470. 

*  Pulteney  v.  Warren,  6  Ves.  93;  Edwards  r.  Morgan,  McClcl.  541, 
554;  Hicks  v.  Sallitt,  3  De  G.,  M.  &  G.  813;  Thomas  v.  Thomas,  2  K.  & 
J.  79.  '  Ibid. ;  Penny  v.  Allen,  7  De  G.,  M.  &  G.  409. 

*  Drummond  v.  St.  Albans,  5  Ves.  433.  But  the  case  is  of  doubtful 
authority.     See  Hicks  v.  Sallitt,  3  De  G.  «&  J.  811,  815. 


504  .HOW  FAR  BACK  ACCOUNTS  MAY  RUN.       [CHAP.  XXVIII. 

tiff,  as  cestui  que  trust  or  equitable  owner,  is  guilty  of  laches, 
courts  will  not  carry  the  accounts  further  back  than  the  filing 
of  the  bill ;  ^  and  if  the  laches  are  very  gross,  the  accounts  will 
not  be  carried  further  back  than  the  decree.^  Nor  will  the 
decree  for  an  account  embrace  the  rents  and  profits  "  which 
the  defendant  might  have  received  without  neglect  or  default ; " 
and  all  just  allowances  will  be  ordered  in  taking  the  account,^ 
unless  the  defendant  is  guilty  of  gross  fraud  ;  *  so  interest  may 
be  disallowed.^  An  assignee  who  receives  the  rents  and  profits 
will  be  accountable  in  the  first  instance,  but  he  will  not  be 
chargeable  with  interest.^  In  case  the  assignee  is  insolvent, 
the  trustee  who  assigned  the  estate  in  breach  of  the  trust  may 
be  called  upon,  and  he  must  pay  interest.'^  Separate  bills  for 
the  recovery  of  the  estate,  and  for  an  account  of  the  mesne 
profits,  may  be  filed.^ 

'  Dormer  v.  Fortescue,  Ridg.  t.  Hardw.  183  ;  3  Atk.  130 ;  Cook  v.  Arn- 
ham,  2  Eq.  Ca.  Ab.  245 ;  Pettiward  v.  Prescott,  7  Ves.  541 ;  Bowes  v. 
East  London  Water  Co.  3  Mad.  375;  Pickett  v.  Loggon,  14  Ves.  215; 
Schroder  v.  Schroder,  Kay,  591;  Kidney  v,  Coussmaker,  12  Ves.  158. 

'^  Acberley  v.  Roe,  5  Ves.  565. 

3  Howell  V.  Howell,  2  M.  &  C.  478. 

*  Stackpole  v.  Davoren,  1  Bro.  P.  C.  9. 

"  Brinkley  v.  Willis,  22  Ark.  1. 

^  Macartney  v.  Blackwood,  Ridg.,  Lapp  &  Sch.  602. 

"^  Vandebende  v.  Livingstone,  3  Swans.  625. 

8  Hall  V.  Coventry,  2  Ch.  Ca.  134 ;  Wright  v.  Chard,  4  Drew.  673. 


872, 873.]  WHO  must  be  parties.  •  505 


CHAPTER  XXIX. 

ACTIONS    IN    RESPECT    TO    TRUST    PROPERTY  —  PARTIES  —  PLEAD- 
ING —  PRACTICE. 

§§  873,  874.  Both  the  cestiiis  que  titist  and  the  trustees  are  required  to  be  joined  whea 
the  action  is  between- strangers  and  the  trust  estate. 

§  875.  Where  the  suit  is  between  tlie  cestuis  que  trust  and  the  trustees. 

§  876.  Where  the  cestuis  que  trust  briug  an  action  against  the  trustees,  all  the  trustees 
ought  to  be  joined  as  defendants. 

§  877.  Where  third  persons  ought  to  be  joined  with  the  trustees.] 

§  878.   Where  courts  will  allow  a  suit  to  go  on,  though  all  the  trustees  are  not  joined. 

§  879.  Where  the  trustees  are  guilty  of  a  tort. 

§  880.  AVhere  a  wife  commits  a  breach  of  trust,  her  husband  must  be  joined. 

§  881.   Cestuis  que  triist  ought  all  to  be  joined  as  plaintiffs  when  they  bring  an  action 
against  trustees. 

§  882.  Where  they  need  not  all  bo  joined. 

§  883.  Where  the  court  will  allow  the  suit  to  go  on,  although  the  cestuis  que  trust  are 
not  all  joined. 

§  884.  Where  suits  are  brought  between  cotrustees. 

§  885.  Where  the  parties  are  numerous. 
§§  886,  887.  All  the  parties  in  the  same  interest  ought  to  be  joined  on  the  same  side. 

§  888.  Trustees  ought  to  join  in  their  answer. 

§  889.  Jlarried  woman  ought  to  join  her  husband  in  her  answer,  but  may  answer  sepa- 
rately. 

§  890.  AVhat  allegations  cestuis  que  ti-ust  should  make  in  their  bill  against  trustees. 

§  873.  Trustees  and  cestuis  que  trust  are  the  owners  of  the 
whole  interest  in  the  trust  estate  ;  and  therefore,  in  suits  in 
equity  in  relation  to  the  estate  by  or  against  strangers,  both 
the  trustees  and  cestuis  que  trust  must  be  parties  representing 
that  interest.!  Thus  where  a  mortgage  is  made  to  A.  in  trust 
for  1>.,  the  cestui  que  trust  B.  cannot  file  a  bill  for  foreclosure 
without  joining  A.,  for  the  reason  that  A.  is  the  only  person 

'  Bifield  V.  Taylor,  1  Moll.  198;  Adams  v.  St.  Leger,  1  B.  &  B.  184; 
Dunn  V.  Seymour,  3  Stockt.  220;  Sprague  v.  Tyson,  44  Ala.  338;  White  v. 
Haynes,  33  Ind.  540;  Harris  v.  McBane,  66  N.  C.  334;  1  Daniell,  Chan. 
Prae.  220,  221,  256  (4th  Am.  cd.). 


606  ACTIONS.  [chap.  XXIX. 

who,  on  payment,  can  discharge  the  mortgage  ; '  and  where  a 
contract  was  made  to  convey  land  to  A.  in  trust  for  B.,  A.  must 
join  in  a  bill  for  a  specific  performance,  as  the  legal  estate  must 
be  conveyed  to  him.^  So  one  of  several  eestuis  que  trust  cannot 
bring  a  bill  for  foreclosure  or  for  redemption  without  joining  all 
the  eestuis  que  trust  interested  in  the  mortgage  or  equity  of  re- 
demption.^ A  mortgagee  cannot  foreclose  without  joining  all 
his  eestuis  que  trust ;  and  a  mortgagor  in  a  bill  to  redeem  must 
join  all  the  eestuis  que  trust  as  defendants,^  unless  the  mortgagee 
had  created  the  trust  for  the  purpose  of  perplexing  the  mort- 
gagor.^  So  if  A.  grants  an  annuity  to  B.,  and  conveys  an  estate 
to  C.  to  secure  it,  he  must  join  both  B.  and  C.  in  a  suit  to  set  it 
aside.''  So  in  suits  by  or  against  trustees  for  the  payment  of 
debts,  or  for  the  payment  of  legacies,  all  the  eestuis  que  trust 
must  be  joined  and  made  parties,  plaintiffs  or  defendants,^ 
although  a  contrary  rule  has  been  laid  down  by  high  authority,^ 
If  the  trusteeship  is  vacant,  and  tlie  property  and  all  the  eestuis 
que  trust  are  before  the  court,  a  valid  decree  binding  the  property 
can  be  made ;  ^  but  in  no  case  can  a  stranger  to  a  trust  main- 
tain a  suit  for  the  administration  of  it.^^ 

1  Woods  V.  Williams,  4  Mad.  186;  Scott  v.  Nicoll,  3  Russ.  476; 
Hichens  v.  Kelly,  2  Sm.  &  Gif.  264. 

2  Cope  V.  Parry,  2  J.  &  W.  588;  Hobson  v.  Staneer,  9  Mod.  88. 

3  Palmer  v.  Carlisle,  1  S.  «fe  S.  423;  Lowe  v.  Morgan,  1  Bro.  Ch.  368; 
Henley  v.  Stone,  3  Beav,  355 ;  Martin  v.  Reed,  30  Ind.  218.  The  decree  in 
Montgomerie  v.  Bath,  3  Ves.  360,  was  made  by  consent. 

"  Caverly  v.  Philp,  6  Mad.  229  ;  Osbourn  v.  Fallows,  1  R.  &  M.  741 ; 
Wetherell  v.  Collins,  3  Mad.  255 ;  Thomas  v.  Dunning,  5  De  G.  &  Sm. 
618;  Whistler  v.  Webb,  Bunb.  53;  Anderson  v.  Stather,  2  Coll.  209; 
Coles  r.  Forest,  10  Beav.  557;  Yates  v.  Hambly,  2  Atk.  237;  Wilton  v. 
Jones,  2  Y.  &  Col.  Ch.  244;  Drew  v.  Harman,  5  Price,  319. 

5  Yates  V.  Hambly,  2  Atk.  237 ;  Osbourn  v.  Fallows,  1  R.  «S;  M.  743. 

6  Bromley  v.  Holland,  7  Ves.  3  ;  Butler  v.  Prendergast,  2  Bro.  P.  C.  170. 
'  Harrison  v.  Stewardson,  2  Hare,  530 ;  Holland  v.  Baker,  3  Hare,  68 ; 

Thomas  v.  Dunning,  5  De  G.  &  Sm.  618. 
8  Mitf.  Eq.  Plead.  174,  176  (4th  ed.). 
3  White  V.  Sprague,  44  Ala.  338. 
1°  White  V.  Haynes,  33  Ind.  540. 


§§  873, 874.]  WHO  biust  be  parties.  507 

§  874.  If  trustees  enter  into  a  contract  without  any  reference 
to  their  cestiils  que  trust,  as  if  they  contract  in  their  own  names 
to  purchase  an  estate,  they  may  maintain  or  defend  a  suit  in 
relation  to  it  in  tlieir  own  names,  although  they  in  fact  intended 
the  contract  for  the  benefit  of  the  trust.  If  it  does  not  appear 
on  the  face  of  the  contract  or  otherwise  that  the  trustees  acted 
as  agents  or  in  a  fiduciary  character,  it  is  unnecessary  to  go 
beyond  the  terms  of  the  contract ;  and  in  many  cases  it  would 
be  improper  to  do  so.^  But  where  trustees  enter  into  contracts 
in  their  character  as  trustees,  and  in  behalf  of  the  trust  estate, 
and  for  the  benefit  of  the  cestuis  que  trust,  the  cestuis  que  trust, 
for  whose  benefit  the  contract  was  made,  ought  to  be  parties 
to  the  suit.2  In  marriage  articles  and  settlements,  the  husband 
and  wife  and  all  the  issue  are  purchasers  for  a  valuable  con- 
sideration, and  are  parties  to  the  contract ;  therefore  they  must 
be  joined  with  the  trustees  in  all  suits  in  relation  to  the  prop- 
erty.-^ A  person  may  be  appointed  the  agent  or  representative 
of  others  in  such  manner  that  he  may  sue  and  be  sued  alone, 
and  without  joining  such  other  persons ;  but  the  intention  to 
constitute  such  an  absolute  representative  must  very  clearly 
appear.*  Trustees  are  not  such  agents  or  representatives :  they 
do  not  own  the  property  beneficially,  though  the  legal  title  is 
in  them  ;  they  are  in  some  sense  the  agents  and  representatives 
of  the  cestuis  que  trust ;  but  they  are  not  agents  for  the  purpose 
of  defending  the  property  against  the  adverse  claims  of  third 
persons  without  the  knowledge  and  behind  the  backs  of  the 

»  White  V.  White,  4  M.  &  C.  400 ;  Keon  v.  Magawley,  1  Dr.  &  W.  401  ; 
Taskcr  w.  Small,  3  M.  &  C.  63;  Humphreys  v.  IloUis,  Jac.  73;  Wakeman 
V.  Rutland,  3  Ves.  233,  504;  Linch  v.  Thomas,  27  111.  457;  Brown  v. 
Cherry,  5G  Barb,  635;  Dix  v.  Akers,  30  Ind.  431;  Rawlings  v.  Fuller,  31 
Ind.  234;  1  DanicU  Chanc.  Prac.  230,  231  (4th  Am.  ed,), 

'  Douglass  V.  Horscfall,  2  S.  &  S.  184;  Ilook  v.  Kinnear,  2  Swans.  417; 
Small  V.  Atwood,  Younge,  457. 

8  Kirk  V.  Clark,  Pr.  Ch.  275. 

*  Vernon  v.  Blaokerly,  2  Atk.  145;  Bifield  v.  Taylor,  1  Moll.  103;  Beat. 
91, 


508  ACTIONS.  [chap.- XXIX. 

real  owners. ^  If  trustees  can  sue  in  their  own  names,  sur- 
viving trustees  may  generally  maintain  the  actions  in  their 
names.2 

§  875.  Where  the  suits  are  between  the  trustees  and  the 
cestuis  que  trust  in  relation  to  the  property,  the  general  rule  is 
that  all  the  trustees  and  all  the  cestuis  que  trust  must  be  before 
the  court,  either  as  plaintiffs  or  defendants. 

§  876.  Thus  if  the  cestuis  que  trust  bring  a  suit  against  the 
trustees,  praying  for  relief,  all  the  trustees  ought  to  be  made 
parties,^  in  order  that,  as  each  cotrustee  is  liable  to  the  cestuis 
que  trust,  the  court  may  do  complete  justice,  so  far  as  possible, 
by  taking  the  accounts  once  for  all,  and  by  adjusting  the  lia- 
bilities of  the  codefendants,  and  thus  obviate  the  necessity  of 
ulterior  proceedings  and  a  multiplicity  of  suits.*  The  cotrus- 
tees ought  to  be  made  parties  (although  the  equities  between 
themselves  cannot  be  adjusted),  for  the  reason  that  the  decree 

'  Holland  v.  Baker,  3  Hare,  72. 

^  Crocker  v.  Peals,  1  Lowell,  416. 

3  Munch  V.  Cockerell,  8  Sim.  219  ;  Att'y-Gen.  v.  Wilson,  Cr.  &  Phil. 
28;  Att>Gen.  v.  Newbury  Corp.  C.  P.  Coop.  77  (1837,  1838)  ;  Walker  v. 
Symonds,  3  Swans.  75 ;  In  re  Chertsey  Market,  6  Price,  278  ;  Humberstone 
V.  Chase,  2  Y.  &  Col.  213;  Perry  v.  Knott,  4  Beav.  179;  Tarleton  v. 
Hornby,  1  Y.  &  Col.  336 ;  Wilson  v.  Moore,  1  M.  &  K.  127 ;  Fowler  v. 
Reynai,  2  De  G.  &  Sin.  749 ;  Willie  v.  EUice,  6  Hare,  505 ;  Heath  v.  Erie 
R.R.  Co.  8  Blatch.  347. 

*  Jones  V.  Jones,  3  Atk.  112 ;  Shipton  v.  Rawlins,  4  Hare,  623 ;  La- 
touche  V.  Dunsany,  1  Sch.  &  Lef.  137;  2  Sch.  &  Lef.  690;  Walker  v. 
Preswick,  2  Ves.  622 ;  Conry  v.  Caulfield,  2  B.  &  B.  255 ;  Farquharson  v. 
Seton,  5  Russ.  45 ;  Ex  parte  Shakeshaft,  3  Bro.  Ch.  197 ;  Taylor  v.  Tab- 
rum,  6  Sim.  281 ;  Fletcher  v.  Green,  33  Beav.  426  ;  Ex  parte  Angle,  Barn. 
425;  Wilson  v.  Moore,  1  M.  &  K.  146;  Lyse  v.  Kingdom,  1  Coll.  188; 
Richardson  v.  Jenkins,  1  Drew.  477 ;  Alleyne  v.  Darcy,  4  Ir.  Eq.  206 ; 
Jenkins  v.  Robinson,  1  Eq.  R,  123;  Rehden  v.  Wesley,  29  Beav.  215; 
Birls  V.  Betty,  6  Mad.  90 ;  Lawrence  v.  Bowie,  2  Phil.  140 ;  1  C.  P.  Coop, 
t.  Cott.  241 ;  Pitt  V.  Bonner,  1  Y".  &  Col.  Ch.  670 ;  Lockhart  v.  Reilly,  1 
De  G.  &  J.  464;  Priestman  v.  Tindall,  24  Beav.  244;  Lingard  v.  Bromley, 
1  Ves.  &  B.  114;  Coppard  v.  Allen,  2  De  G.,  J.  &  S.  173. 


§§  874-877.]  WHO  must  be  parties.  509 

of  relief  to  the  cestvis  que  trust  is  the  foundation  of  the  relief 
to  the  cotrustees  inter  sese  ;  and  if  any  of  the  trustees  are  not 
parties  to  the  first  suit  by  the  cestuis  que  trust,  they  will  not  l)e 
bound  by  the  decree,  and  the  whole  subject-matter  will  of  course 
come  under  litigation  for  the  second  time.^  But  a  person  named 
as  trustee  need  not  be  joined  if  he  has  disclaimed  the  office,^ 
or  has  been  discharged.  So  if  the  breach  of  trust  is  in  the 
nature  of  a  tort,  for  which  there  could  be  no  contribution  as 
between  the  defaulting  trustees,  they  need  not  all  be  joined  as 
defendants  in  a  bill  for  the  breach .^ 

§  877.  If  the  trustees  commit  a  breach  of  trust,  and  third 
persons  obtain  the  benefit  of  it,  they  must  be  joined  as  defend- 
ants in  a  suit  by  the  cestuis  que  trusts  If  the  trustees  convey 
the  property  to  a  third  person  with  notice  of  the  trust,  or  with- 
out consideration,  such  third  person  may  be  sued  by  the  cestuis 
que  trust,  and  must  be  joined  with  the  trustees  in  a  suit  for 
relief  by  the  cestuis  que  trusl.^  But  if  such  third  person  has 
received  a  conveyance  without  notice,  and  has  conveyed  away 
the  estate  for  a  valuable  consideration  not  paid  to  himself,  he 

'  Perry  v.  Knott,  4  Bear.  180;  Ecclcston  v.  Skelmersdalc,  1  Beav.  39G; 
Cottingham  v.  Shrewsbury,  3  Hare,  627 ;  Lennard  v.  Curzon,  1  De  G.  «fe 
Sm.  350;  Payne  v.  Parker,  L.  R.  1  Ch.  327. 

*  Wilkinson  v.  Parry,  4  Riiss.  274;  Creed  v.  Creed,  2  Hog.  215;  Rich- 
ardson V.  llulbert,  1  Anst.  65;  llubbell  v.  Ilubbell,  22  Ohio  St.  208. 

*  Heath  V.  Erie  R.R.  Co.  8  Blatch.  347;  Cunningham  i\  Pell,  5  Paige, 
607. 

*  Burt  V.  Dennett,  2  Bro.  Ch.  225;  Cousett  v.  Bell,  1  Y.  &  Col.  Ch. 
669;  Perry  u.  Knott,  4  Beav.  179;  5  Beav.  297;  WilHains  v.  Allen,  29 
Beav.  292.  But  see  Pearse  v.  Hewitt,  7  Sim.  471;  Vanderhemle  v.  Living- 
ston, 3  Swans.  625;  TralFord  v.  Boehm,  3  Atk.  440;  Fuller  v.  Knigiit,  6 
Beav.  205 ;  Heath  v.  Erie  R.R.  Co.  8  Blatch.  347. 

*  Ibid.;  Montford  v.  Cadogan,  17  Vcs.  485;  Salomans  v.  Laing,  12 
Beav.  377 ;  Hanson  v.  Worthhigton,  12  Md.  418 ;  Abbott  v.  Reeves,  49 
Penn.  St.  494;  Hutchinson  v.  Reid,  HofF.  Ch.  317;  Bailey  v.  Inglee,  2 
Paige,  278;  Bush  v.  Bush,  3  Strob.  Eq.  377;  Lund  v.  Blanshard,  4  Hare, 
28,  and  n. ;  Meyer  v.  Montriou,  9  Beav.  521 ;  Western  R.R.  Co.  v.  Nolan, 
48  N.  Y.  517. 


510  ACTIONS.  [chap.  XXIX. 

need  not  be  joined  in  the  suit ;  for,  havin<^  no  notice  of  the 
trust,  he  cannot  be  made  personally  liable,  and  having  none  of 
the  trust  property  or  its  proceeds  in  his  hands,  it  cannot  be 
attached  or  reached  through  him.^  So  if  a  third  person  pur- 
chases the  trust  property  for  a  valuable  consideration,  and 
without  notice  expressed  or  implied,  he  need  not  be  made  a 
party,  for  the  reason  that  no  relief  can  be  had  against  him.^ 
If  a  cotrustee  has  deceased,  his  representatives  need  not  be 
joined  if  they  have  had  nothing  to  do  with  the  trust ;  ^  and  so 
if  the  plaintiff  waives  all  relief  that  he  might  have  by  joining 
them.*  If  the  suit  does  not  seek  to  charge  the  trustees  person- 
ally, and  one  of  them  dies  during  its  progress,  his  representa- 
tives need  not  be  brought  before  the  court,  as  the  trusteeship 
survives  in  the  remaining  trustees.^  So  the  representatives  of 
a  deceased  trustee,  who  was  not  a  party  to  a  breach  of  trust, 
need  not  be  made  parties  to  a  suit  to  remedy  the  breach.^  But 
the  representatives  of  a  deceased  cotrustee  are  liable  to  the 
extent  of  assets  received  by  them,  for  a  breach  of  trust  com- 
mitted in  his  lifetime,  and  they  may  all  be  joined  that  their 
relative  rights  may  be  ascertained  in  the  suit.' 

§  878.  If  a  trustee  is  out  of  the  jurisdiction,  or  if  he  cannot 
be  served  with  process  after  diligent  search,  or  if  for  any  rea- 
son he  cannot  be  compelled  to  appear,  the  court  will  allow  the 

'  Knye  v.  Moore,  1  S.  &  S.  61 ;  Harrison  v.  Pryse,  Barn.  324. 

2  Ibid. 

3  Glass  V.  Oxenham,  2  Atk.  121 ;  Slater  v.  Wheeler.  9  Sim.  156  ;  Routh 
V.  Kinder,  3  Swans.  Hi,  n. ;  Beattie  v.  Johnstone,  8  Hare,  169 ;  Simes  v. 
Eyre,  6  Hare,  137. 

'  *  Selyard  v.  Harris,  1  Eq.  Ca.  Ab.  74  ;  Moore  v.  Blake,  1  Moll.  284. 

'"  London  Gas  Light  Co.  v.  Spottiswood,  14  Beav.  271. 

^  Simes  V.  Eyre,  6  Hare,  137. 

'  Lyse  V.  Kingdom,  1  Coll.  184;  Knatchbull  v.  Fearnhead,  3  M.  &  Cr. 
122;  Pharis  v.  Leachman,  20  Ala.  683;  Kirkman  v.  Booth,  11  Beav.  273  ; 
White  V.  Commonwealth,  39  Penn.  St.  167 ;  Beattie  v.  Johnstone,  8  Hare, 
177  ;  Hall  v.  Austin,  10  Jur.  452 ;  2  Coll.  570 ;  Penny  v.  Penny,  9  Hare, 
39 ;  Haldenby  v.  SpolForth,  9  Beav.  195 ;  Richardson  v.  Jenkins,  1  Drew. 
477. 


§§  877, 878.]  WHO  must  be  parties.  511 

suit  to  proceed  so  far  as  it  can  in  the  absence  of  such  trustee.^ 
In  a  suit  to  adjudicate  the  rights  of  parties  to  an  estate,  the 
trustee  of  an  outstanding  term  need  not  be  a  party,-  and  where 
a  trustee  has  died  insolvent,  his  representatives  need  not  be 
made  parties.^  But  if  an  insolvent  trustee  is  living,  he  must 
be  brought  before  the  court."*  An  intermediate  trustee  of  a 
mere  ecjuity  need  not  be  made  a  party  except  there  are  some 
peculiar  circumstances.^  So  where  a  trustee  has  properly  con- 
veyed all  his  interest  to  a  third  person  upon  the  same  trusts.^ 
So  where  a  mortgagor  conveyed  his  equity  of  redemption  to 
trustees  by  a  voluntary  and  revocable  instrument,  it  was  held 
that  the  mortgagor  so  far  represented  the  estate  that  the  trus- 
tees need  not  be  made  parties  to  a  foreclosure  suit.'  So  suits 
have  been  allowed  to  be  maintained,  though  the  trustees  were 
not  joined,  whci'e  they  had  no  interest,  and  the  cestuis  que  trust 
undertook  for  the  trustee  that  the  decree  should  be  final  and 
effectual.  But  these  are  anomalous  cases.^  If  a  cestui  que 
trust  makes  a  new  settlement  of  the  trust  fund  upon  new  trus- 
tees, and  they  commit  a  breach  of  trust,  the  cestuis  que  trust 
under  the  new  settlement  may  have  relief  against  the  new 
trustees  without  joining  the  old  ones,  although  they  are  impli- 
cated in  the  wrong.^ 

'  Morrill  v.  Lawson,  2  Eq.  Ca.  Ab.  1G7  ;  Whalley  v.  Wballey,  1  Verii. 
487 ;  Cowstad  v.  Cely,  Pr.  Ch.  83 ;  Butler  v.  Prendorgast,  2  Bro.  P.  C. 
170;  Moore  v.  Vinten,  12  Sim.  IGl;  Heath  v.  Percival,  2  Eq.  Ca.  Ab.  1G7; 
1  P.  Wms.  G83. 

"  Brooks  V.  Burl,  1  Beav.  lOG. 

8  Seddon  v.  Connel,  10  Sim.  85;  Madox  v.  Jackson,  3  Atk.  40G ;  De- 
vaynes  v.  Robinson,  24  Beav.  98.     But  see  Hayward  v.  Ovey,  6  Mad.  113. 

4  Hayward  v.  Ovey,  G  Mad.  113;  Thorpe  v.  Jackson,  2  Y.  &  Col.  560. 

«  Scully  V.  Scully,  3  Ir.  Eq.  494  ;  Head  v.  Teynham,  1  Cox,  57 ;  Munch 
V.  Cockeroll,  8  Sim.  219;  Malone  v.  Geraghty,  2  Conn.  &  Laws.  249; 
Whittle  V.  Ilalliday,  2  Conn.  &  Laws.  430;  Horrocks  v.  Ledsam,  2  Coll. 
208;  Nelson  v.  Seaman,  G  Jur.  (n.  s.)  258. 

^  Bromley  v.  Holland,  7  Ves.  11 ;  Knye  v.  Moore,  1  S.  &  S.  G5 ;  Ilced 
V.  O'Brien,  7  Beav.  32. 

'  Slade  V.  Rigg,  3  Hare,  35.  »  Kirk  i'.  Clark,  Pr.  Ch.  275. 

»  McGachen  v.  Dew,  15  Beav.  84. 


512  ACTIONS.  [chap.  XXIX. 

§  879.  If  a  person  holding  a  fiduciary  relation  is  guilty  of 
something  more  than  a  mere  breach  of  trust  or  of  civil  obli- 
gation, as  if  he  commits  a  tort  or  delictum,  or  a  fraudulent  or 
criminal  act,  he  may  be  pursued  alone,  and  his  cotrustees  need 
not  be  joined,  nor  even  his  confederates  in  the  wrong.^ 


The  husband  of  a  feme  covert  trustee  is  responsible, 
in  the  absence  of  statute  exemptions,  for  breaches  of  trust  com- 
mitted by  his  wife  before  marriage  as  well  as  after,  and  he 
should  be  joined  in  the  suit.^ 

§  881.  As  a  general  rule,  all  the  cestuis  que  trust  must  be 
before  the  court,  in  order  that  the  rights  of  all  parties  in  inter- 
est may  be  ascertained,  and  future  litigation  avoided.  The 
trustees  ought  not  to  be  twice  vexed  where  it  is  possible  to 
determine  all  the  rights  of  the  parties  in  one  suit.^  But  a  bill 
by  a  part  of  the  cestuis  que  trust  ought  not  to  be  dismissed,  but 
it  should  stand  for  amendment  and  for  summoning  in  of  other 
parties.^ 

§  882.  But  if  a  cestui  que  trust  has  assigned  all  his  interest 
to  a  third  person,  so  that  he  has  nothing,  he  need  not  be  made 
a  party ;  ^  or  if  a  cestui  que  trust  is  entitled  to  a  distinct  and 

1  Lingard  v.  Bromley,  1  V.  &  B.  117 ;  Seddon  v.  Connel,  10  Sim.  86  ; 
Att>Gen.  V.  Wilson,  1  Cr.  &  Ph.  28 ;  Walburn  v.  Ingilby,  1  M.  «&  K.  77 ; 
Charity  Corp.  v.  Sutton,  2  Atk.  406 ;  Att'y-Gen.  v.  Brown,  1  Swans.  265 ; 
Cunningham  v.  Pell,  6  Paige,  612. 

^  Palmer  v.  Wakeford,  3  Beav.  227 ;  Moon  v.  Henderson,  4  Des.  459 ; 
Carroll  v.  Connet,  2  J.  J.  Marsh.  195;  Elliott  v.  Lewis,  3  Edw.  Ch.  40; 
Redwood  v.  RidUick,  4  Munf.  222. 

^  Pyncent  v.  Pyncent,  3  Atk.  571 ;  Morrill  v.  Lawson,  2  Eq.  Ca.  Ab.  167  ; 
Manning  v.  Thesiger,  1  S.  &  S.  107  ;  Adams  v.  St.  Leger,  1  B.  &  B.  181 ; 
Hanne  v.  Stevens,  1  Vern.  110;  Court  v.  Jeffery,  1  S.  &  S.  105;  Phillipson 
V.  Gatty,  6  Hare,  26  ;  Josling  v.  Karr,  3  Beav.  495 ;  Piatt  v.  Oliver,  2 
McLean,  307  ;  McKinley  v.  Irvine,  13  Ala.  682 ;  Cassiday  v.  McUaniel,  8 
B.  Mon.  519 ;  Munch  v.  Cockerell,  8  Sim.  219,  231. 

4  Howard  v.  Gilbert,  39  Ala.  726. 

*  Goodson  V,  Ellison,  3  Russ.  583. 


§§  879-884.]  WHO  must  be  parties.  513 

aliquot  share  of  an  ascertained  fund,  he  may  maintain  a  bill 
against  the  trustees  for  that  share  without  joining  the  cestuis 
que  trust  of  the  remaining  fund.^  This  practice,  however,  is 
not  encouraged,^  and  if  the  fund  is  not  certain,  but  is  to  be 
ascertained  by  an  account,  all  the  cestuis  que  trust  interested  in 
it  must  be  made  parties.^ 

§  883,  If  a  cestui  que  trust  is  absent,  and  all  the  means  of 
compelling  liim  to  appear  have  been  exhausted,  the  suit  may 
proceed  in  his  absence*  So  if  lie  is  a  merely  passive  party, 
and  the  disposition  of  the  property  is  within  the  power  of  those 
before  the  court.^  But  if  the  primary  object  of  the  bill  is  to 
affect  the  right  of  the  absent  cestui  ciue  trust,  or  to  charge  it 
with  debts  or  liens,  the  court  will  not  make  a  decree  in  liis 
absence,  although  the  ler/al  title  is  in  the  parties  befoi-e  the 
court.^  In  such  cases  decrees  have  been  made,  reserving  the 
right  of  the  absent  cestui  que  trust  to  apply  to  have  it  amended,^ 
or  conveyances  have  been  ordered  without  prejudice  to  the  rights 
of  cestuis  que  trust  who  could  not  be  found.^ 

§  884.  Where  some  of  the  trustees  have  committed  a  breach 
of  trust,  a  suit  may  be  maintained  against  them  by  their  co- 
trustees for  restoration  of  the  property,  without  joining  the 
cestuis  que  trust,  except  upon  a  final  accounting,  although  they 

1  Smith  V.  Snow,  3  Mad.  10;  Perry  v.  Knott,  5  Beav.  293;  Hughson  v. 
Cookson,  3  Y.  &  Col.  378 ;  Hutchinson  v.  Townsend,  2  Keen,  675 ;  Hunt 
V.  Peacock,  11  Jur.  5.5.5;  Sandford  v.  Jodrell,  2  Sim.  &  Gif.  176;  Mont- 
gomerie  v.  Bath,  3  Ves.  560;  Piatt  v.  Oliver,  2  McLean,  307. 

*  Ibid. 

3  Lenaghan  v.  Smith,  2  Phil.  301 ;  Alexander  v.  Mullins,  2  R.  &  M. 
668. 

*  Downes  v.  Thomas,  7  Ves.  206 ;  Phillips  v.  Buckingham,  1  Vern.  228. 

*  Rogers  v.  Linton,  Bunb.  200;   Willats  v.  Busby,  5  Beav.  193. 

«  Brown  V.  Blount,  2  R.  &  M.  83;  Holmes  v.  Bell,  2  Beav.  298;  Fell 
V,  Brown,  2  Beav.  27(i;  Willats  v.  Busby,  0  Beav.  193. 

7  Att'y-Gen.  v.  Baliol  Coll.  9  Mod.  407. 

8  Willats  V.  Busby,  5  Beav.  193. 
VOL.  II.  33 


51-4  ACTIONS.  [chap.  XXIX. 

also  may  have  a  suit  for  the  breach  of  trust.  This  rule  has 
been  established  and  acted  upon  by  reason  of  its  great  conven- 
ience ;  ^  but  where  some  of  the  cestuis  que  truat  have  procured 
or  concurred  in  a  breach  of  the  trust  by  some  of  the  trustees, 
such  cestuis  que  trust  must  be  joined  in  a  suit  for  the  correction 
of  the  wrong.^ 

§  885.  Where  the  parties  in  interest  are  so  numerous  that  it 
is  not  possible  or  convenient  to  join  all  as  plaintiffs,  the  court 
will  allow  a  few  cestuis  que  trust  to  sue  in  behalf  of  themselves 
and  the  others;^  so  a  small  number  may  be  made  defendants 
as  representatives  of  all  the  others  for  the  purpose  of  determin- 
ing their  rights ;  ^  but  in  such  cases  all  the  trustees  must  be 
joined.^  If  all  the  cestuis  que  trust  must  join  in  a  conveyance, 
they  should  all  join  in  the  suit,  otherwise  the  litigation  might 
be  futile ;  but  in  the  absence  of  any,  the  court  will  proceed  to 

'  Franco  v.  Franco,  3  Ves.  75 ;  Bridgman  i'.  Gill,  24  Beav.  302 ;  Peake 
V.  Ledger,  4  De  G.  &  Sm.  137  ;  Wood  v.  Brown,  34  N.  Y.  337;  McGregor  v. 
McGregor,  35  N.  Y.  218;  Hughes  v.  Key,  20  Beav.  395;  Groom  v.  Booth, 
1  Dr.  657;  May  v.  Selby,  1  Y.  &  Col.  Ch.  235;  Baynard  v.  Woolley,  20 
Beav.  583;  Noble  v.  Meymott,  14  Beav.  471;  Horsely  v.  Fawcett,  11 
Beav.  565;  Bridget  v.  Himes,  1  Coll.  72;  Meyer  v.  Montriou,  9  Beav.  521. 

2  Jesse  V.  Bennett,  6  De  G.,  M.  &  G.  609.  But  see  Meyer  v.  Montriou, 
9  Beav.  521;  Greenwood  v.  Wakeford,  1  Beav.  576;  Payne  v.  Collier,  1 
Ves.  Jr.  170;  Fuller  v.  Knight,  6  Beav.  205;  McGachen  v.  Dew,  15  Beav. 
84;  Shook  v.  Shook,  19  Barb.  653;  Abbott  v.  Reeves,  49  Penn.  St.  494; 
Jacob  V.  Lucas,  1  Beav.  436;  Griffith  v.  Vanheythuysen,  9  Hare,  85;  Hall 
V.  Lock,  2  N.  C.  C.  631. 

^  Bromley  v.  Smith,  1  Sim.  8;  Weld  v.  Bonham,  2  S.  &  S.  91 ;  Lloyd 
V.  Loaring,  6  Ves.  773;  Taylor  v.  Salmon,  4  M.  &  C.  134;  Walworth  v. 
Holt,  4  M.  &  C.  619;  Cockburn  v.  Thompson,  16  Ves.  321;  Preston  v. 
Grand,  &c.,  Dock  Co.  11  Sim.  327;  Att'y-Gen.  v.  Heelis,  2  S.  &  S.  67 ; 
Chancy  v.  May,  Pr.  Ch.  529  ;  Manning  v.  Thesiger,  1  S.  &  S.  106 ;  Harvey 
V.  Harvey,  4  Beav.  215;  Hickens  v.  Congreve,  4  Russ.  562;  William  v. 
Salmond,  2  K.  &  J.  463 ;  1  Daniell,  Ch.  Prac.  256  (4th  Am.  ed.). 

••  Adair  v.  New  River  Co.  11  Ves.  429..  443-445;  City  of  London  v. 
Richmond,  2  Vern.  421  ;  Meux  v.  Maltby,  2  Swans.  277  ;  Milbank  v.  Collier, 
1  Coll.  237;  Harvey  v.  Harvey,  4  Beav.  215;  5  Beav.  134;  Bunnett  v. 
Foster,  7  Beav.  540. 

°  Holland  v.  Baker,  3  Hare,  68. 


§§  884-886.]       WHERE   THE   PARTIES    ARE   NUMEROUS.  515 

bind  tlie  rights  of  all  if  possible.^  In  order  that  a  few  may  sue, 
or  be  sued,  in  behalf  of  a  large  number,  it  must  appear  that  all 
have  the  same  beneficial  interest ;  for  if  they  have  different  or 
conflicting  interests,  they  must  all  be  brought  before  the  court, 
in  order  that  their  separate  interests  may  be  adjusted. ^  How 
large  the  number  must  be  in  order  to  dispense  with  calling  them 
all  before  the  court  has  never  been  determined.  Where  there 
were  twenty-one  cestuis  que  trust,  the  court  required  them  all 
to  be  joined  ;^  but  in  one  case  where  the  cestuis  que  t)-ust  were 
twenty-six  in  number,  and  in  another  twenty-seven,  and  bills 
were  filed  nearly  twenty  years  after  the  institution  of  the  trusts,  a 
few  were  allowed  to  maintain  bills  in  behalf  of  the  whole  for  the 
execution  of  the  trusts.* 

§  886.  If  a  cestui  que  trust  desires  to  bring  a  suit  against  a 
stranger,  he  should  ajjply  to  the  trustee  to  allow  his  name  to  be 
used  as  coplaintiff,  and  the  trustee  is  bound  to  comply,  on  being 
indemnified  against  the  costs.  If  the  trustee  refuses  improperly, 
he  may  be  made  a  defendant,  and  will  be  deprived  of  his  costs, 
or  he  may  be  ordered  to  pay  costs.^  If  the  trustee  is  in  no 
default,  he  may  have  his  costs.  If  the  trustees  and  cestuis  que 
trust  are  sued  by  a  stranger,  they  ought  to  join  in  their  answer 
and  defence.  The  court  has  no  means  of  compelling  them  to 
join  ;  but  if  they  split  in  their  defence,  only  one  set  of  costs  will 
be  alluwed  against  the  plaintiff,  and  they  may  have  to  bear  their 
own  costs.'' 

»  Meux  V.  Maltby,  2  Swans.  285;  Powell  v.  Wright,  7  Beav.  449. 

*  Att'y-Gen.  v.  Heelis,  2  S.  &  S.  76,  and  cases  cited ;  T.  &  R.  297 ; 
Gray  v.  Chaplin,  2  S.  &  S.  267;  liainbngge  v.  Burton,  2  Beav.  539;  Long 
I'.  Yonge,  2  Sim.  385;  Richardson  v.  Larpent,  2  Y.  &  Col.  Ch.  507;  New- 
ton V.  Egniont,  4  Sim.  574;  5  Sim.  130,  137;  Evans  v.  Stokes,  1  Keen,  24; 
1  Daniell,  Cli.  Prac.  242  (4th  Am.  ed.). 

'  Harrison  v.  Stewardson,  2  Hare,  533. 

■•  Smart  v.  Bradstock,  7  Beav.  .500;  Bateman  v.  Margerison,  G  Hare, 
496. 

°  Read  V.  Sparkes,  1  Moll.  8;  Hughes  v.  Key,  20  Beav.  395.  Browne  v. 
Lockliart,  10  Sim.  426,  seems  to  be  contrary,  but  is  doubted. 

^  Read  v.  Sparkes,  1  Moll.  10;  Woods  v.  Woods,  5  Hare,  229;  Farr  v. 


516  ACTIONS.  [chap.  xxtx. 

§  887.  In  suits  between  cestuis  que  trust  inter  se,  or  cestuis 
que  trust  and  trustees,  all  the  parties  in  the  same  interest, 
whether  cestuis  que  trust  or  trustees,  should  join,  either  as  plain- 
tiffs or  defendants.^ 

§  888.  Trustees  ought  always  to  join  in  their  answer  ;  if  they 
separate  in  their  defence,  only  one  set  of  costs  will  be  given, ^ 
which  will  be  divided  equally,  if  both  trustees  are  in  fault,-^  but  if 
only  one  trustee  is  in  fault,  the  costs  will  be  given  to  the  trustee 
who  is  without  fault.^  But  if  there  is  good  reason  for  severing 
in  their  defence,  as  where  one  trustee  has  a  separate  or  personal 
interest  independent  of  the  others,  or  where  they  reside  at  such 
a  distance  that  it  is  impossible  for  them  to  act  together,  or 
where  any  proper  reasonable  ground  exists,  the  trustees  will  be 
allowed  to  answer  severally,  and  each  one  may  be  allowed  his 
costs.*^  If  some  of  the  trustees  are  properly  made  plaintiffs 
and  others  defendants,  in  order  to  settle  the  rights  of  the 
parties,  each  may  have  costs ;  but  if  one  is  made  defendant 
by  reason  of  his  misconduct,  costs  will  not  be  allowed  to 
him.^ 

Sherriffe,  4  Hare,  528;  Van  Santlau  v.  Moore,  1  Russ.  441,  reversing  2  S. 
&  S.  509;  Cuddy  v.  Waldron,  1  Moll.  14;  Homan  v.  Hague,  1  Moll.  14; 
Galway  i;.  Butler,  1  Moll.  13. 

1  Hosking  v.  Nicholls,  1  Y.  &  Col.  Ch.  478. 

*  Nicholson  v.  Falldner,  1  Moll.  559;  Gaunt  v.  Taylor,  2  Beav.  347; 
Shovelton  v.  Shovelton,  32  Beav.  143. 

3  Course  v.  Humphrey,  26  Beav.  402;  Att'y-Gen.  v.  Wyville,  28  Beav, 
464. 

*  Young  V.  Scott,  1  Jones,  Ir.  Exch.  71 ;  Att'y-Gen.  v.  Cuming,  2  Y.  & 
Col.  Ch.  156;  Webb  v.  Webb,  16  Siui.  55;  Cummins  v.  Bromfield,  3  Jur. 
(n.  s.)  657. 

*  Gaunt  V.  Taylor,  2  Beav.  346;  Aldridge  v.  Westbrook,  4  Beav.  212; 
Cummins  v.  Bromfield,  3  Jur.  (n.  s.)  657 ;  Dudgeon  v.  Cormley,  2  Conn. 
&  Laws.  422;  Nicholson  v.  Falkiner,  1  Moll.  560;  Wiles  v.  Cooper,  9 
Beav.  294;  Farr  v.  Sherriffe,  4  Hare,  528;  Barry  v.  Woodham.  1  Y.  &  Col. 
538,  and  cases  cited;  Reade  v.  Si)arkes,  1  Moll.  10;  Kempf  jj.  Jaiues,  C. 
P.  Coop.  13,  1837,  1838;  Walsh  v.  Dillon,  1  Moll.  13. 

*  Hughes  V.  Key,  20  Beav.  395. 


§§  887-890.]  NECESSARY   ALLEGATIONS.  517 

§  889.  A  feme  covert^  entitled  to  sue  for  her  separate  estate, 
cannot  join  with  her  husband,  if  he  sets  up  any  adverse  claim 
or  interest.  In  such  case,  she  must  sue  by  her  next  friend,  and 
make  her  husband  a  defendant,  and  he  will  be  entitled  to  his 
costs.i  The  same  rule  applies  in  relation  to  the  execution  of  a 
power  by  a  married  woman. ^  But  if  the  husband  has  no  sepa- 
rate or  adverse  interest,  he  may  be  joined  with  the  wife  as 
coplaintiff.^  If  a  married  woman  is  sued  in  respect  to  her 
separate  estate,  she  may  obtain  an  order  to  answer  separately  ;* 
but  the  mere  fact  that  a  woman  is  living  apart  from  her  hus- 
band does  not  entitle  her  to  answer  separately.^ 

§  890.  If  a  bill  is  filed  for  an  account,  and  the  plaintiff  seeks 
relief  against  wilful  default  of  the  trustees,  he  must  allege  in  his 
bill  some  specific  act  of  wilful  misconduct,*^  and  pray  conse- 
quential relief;  and  at  the  hearing  he  must  prove  the  act 
alleged,  or  at  least  establish  a  case  for  inquiry.'  If,  at  the 
hearing,  the  common  accounts  only  are  directed,  it  is  too  late 
to  ask  relief,  on  a  hearing  for  further  directions,  against  any 
wilful  act  that  may  appear  accidentally  from  other  inquiries  ;  ^ 
and  a  trustee  cannot  be  declared  liable  for  wilful  default  upon 
a  common  order  made  at  chambers  for  the  administration  of 
the  trust  estate.^  But  if  a  bill  prays  for  an  account  with  interest^ 
and  at  the  original  hearing  an  account  is  directed,  and  in  the 
course  of  taking  the  accounts  improper  balances  appear  to  have 

'  Thorby  v.  Yates,  1  Y.  &  Col.  Ch.  438;  1  Daniell,  Chan.  Prac.  89,  90, 
178-189  (4th  Am,  ed.). 

^  Hope  V.  Fox,  1  John.  &  II.  456. 

^  Beadmore  v.  Gregory,  2  Hem.  &  Mil.  491. 

*  Norris  v.  Wright,  14  Beav.  303. 

*  Garey  v.  Whittinghain,  5  Beav.  270;  Barry  v.  Woodhani,  1  Y.  &  Col. 
638. 

«  Bond  y.  Mc Watty,  14  Ir.  Eq.  74. 
'  Sleight  V.  Johnson,  3  K.  &  J.  292. 

8  Coope  V.  Carter,  2  De  G.,  M.  «&  G.  292. 

9  Re  Fryer,  3  K.  &  J.  317;  rartingfon  v.  Reynolds,  4  Drew.  2-33;  Re 
Delavante,  6  Jm\  (k.  s.)  118;  Brookcr  v.  Brooker,  3  Sim.  &  Gif.  475. 


518  PLEADING.  [chap.  XXIX. 

been  retained,  interest  on  tlic  balances  may  be  asked  for  at  the 
hearing  for  further  directions.^  And  if  relief  against  a  breach 
of  trust  is  prayed  for,  and  at  the  original  hearing  the  usual  ac- 
counts only  are  directed,  but  with  an  inquiry  as  to  who  are  the 
parties  interested,  it  is  not  too  late  to  ask  relief  against  the 
breach  of  trust  on  the  hearing  for  further  directions,  as  before 
that  time  the  court  cannot  deal  with  the  question.^  In  a  re- 
demption suit  it  is  not  necessary  that  the  plaintiff  should  charge 
wilful  default ;  nor  is  the  case  altered,  if  the  deed,  though  in 
substance  a  security,  is  in  form  a  deed  of  trust.^  The  general 
rule  is,  that  a  plaintiff,  who  seeks  to  charge  a  trustee  with  a 
breach  of  trust,  is  bound  to  state  a  clear  case  upon  his  bill. 
Therefore  acts  of  a  trustee  which  may,  or  may  not,  be  breaches 
of  trust  must  be  so  alleged  that  they  necessarily  appear  to  be 
breaches,  or  a  demurrer  will  be  sustained.*  The  presumption 
is  in  favor  of  the  performance  of  his  duty  by  the  trustee  ;  the 
plaintiff  must  therefore  allege  and  prove  affirmatively  a  breach 
of  the  trust.^  The  trustee  will  not  be  liable  for  breaches  of 
trust  not  alleged  in  the  bill.^  But  if  the  trustee  commits 
breaches  of  trust  of  the  same  nature  as  those  alleged  in  the  bill, 
relief  may  be  given  against  them  without  an  amendment  to 
the  bill.7 

'  Sbaw  V.  Turbett,  13  Ir.  Eq.  476. 

2  Pattenden  v.  Hobson,  1  Eq.  R.  28. 

3  O'Connell  v.  O'Oallagan,  15  Ir.  Eq.  31. 

"  Att'y-Gen.  v.  Norwich,  2  M.  &  Cr.  406,  422;  Maccubbin  v.  Cromwell, 
7  G.  &  J.  157;  McGina  v.  Shaeffer,  7  Watts,  412;  Dial  v.  Dial,  21  Tex. 
529. 

*  Ibid. 

®  Smith  V.  Smith,  4  John.  Ch.  45;  Cooper  v.  Cooper,  1  Halst.  Ch.  9. 

7  Harrison  v.  Mock,  10  Ala.  190;  Coope  v.  Carter,  2  De  G.,  M.  &  G. 
292;  Sleight  v.  Johnson,  3  K.  &  J.  292. 


§  890, 891.]  .    COSTS.  519 


CHAPTER   XXX. 


COSTS. 


§  891.  Copts  as  between  stranpfers  and  trustees. 

§  892.  Costs  are  under  the  control  of  courts  of  equity. 

§  893.  Tderefure  no  general  rule  can  be  stated. 

§  894.  Trustees  who  faithfully  perform  their  duty  may  generally  have  their  costs  as 

between  solicitor  and  client. 
§  895.  If  the  trustee  is  a  solicitor  he  can  make  no  charge  for  professional  services;  but 

the   court  will   order  costs  to  be  taxed  iu  the  usual  manner,  and  leave  the 

proper  officer  to  apply  them. 
§  896.  "Where  suits  are  brought  to  create  a  trust  fund,  the  trustees  may  be  ordered  to 

pay  costs,  or  they  will  be  allowed  costs  only  as  between  party  and  party. 
§  897.  Where  a  trustee  neglects  to  appear  or  to  ask  for  his  costs. 
§  898.  Where  a  trustee  may  iiave  his  costs,  although  the  decree  is  against  him. 
§  899.  Trustees  maj-  liave  their  costs,  whether  plaintiffs  or  defendants. 
§§  900,  901.  Where  the  trustees  are  in  fault,  they  cannot  have  costs. 
I  §  902.  If  trustees  commit  a  breach  of  trust,  thej'  must  pay  the  costs  of  correcting  it. 
§  903.  If  trustees  are  refused  their  costs,  or  are  ordered  to  pay  costs,  they  cannot  have 

an  allowance  for  them  in  their  accounts. 

§  891.  The  general  rule  is,  that  if  trustees  bring  suits 
against  strangers,  or  strangers  bring  suits  against  trustees 
respecting  the  trust  fund,  costs  will  be  awarded  against  the 
losing  i)arty,  as  in  other  suits. ^  The  rule,  however,  is  slightly 
varied  in  some  cases.  Thus  in  England,  if  an  executor  sues 
upon  a  cause  of  action  accruing  during  his  testator's  lifetime, 
he  is  not  liable  for  costs  if  he  fails  ;  but  if  he  is  sued,  and 
judgment  is  awarded  against  him.  he  must  pay  costs  like  any 
otlier  defendant.^  And  this  rule  has  been  followed  in  some  of 
the  United  States.^     But  even  where  a  modified  rule  prevails, 

'  Westley  v.  "Williamson,  2  Moll.  458;  Burgess  v.  Wheate,  1  TA.  2'A  : 
Edwards  v.  Harvey,  G.  Coop.  40;  Hill  v.  Magan,  2  Moll.  4G  ;  Elsey  v. 
Lutyens,  8  Hare,  164;  Diinlop  v.  Hubbard,  19  Ves.  205;  Edenborough  v. 
Canterbury,  2  Russ.  94;  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326. 

*  2  Wms.  ExVs,  1718,  1792. 

^  Justices  V.  Haygood,  20  Ga.  847;  Knox  v.  Bigelow,  15  Wis.    415  ; 


520  COSTS.  [chap.  XXX. 

courts  may  impose  costs  for  bringing  any  improper  suits  by 
executors  or  others  suing  in  a  fiduciary  capacity.^  If  exec- 
utors or  trustees  are  compelled  to  pay  costs,  the  amount  paid 
may  be  allowed  to  them  in  their  accounts,  if  the  litigation  was 
just  and  proper  ;  ^  but  if  the  litigation  was  improper  and  vex- 
atious, courts  may  refuse  to  allow  such  charges.^  It  is  the 
duty  of  an  executor  to  present  the  will  of  his  testator  to  the 
Court  of  Probate  for  allowance.  If  an  issue  of  devisavit  vel 
non  is  raised  upon  the  will,  it  is  the  duty  of  the  executor  to 
take  care  that  the  issue  is  properly  tried,  and  he  will  be  al- 
lowed his  costs  out  of  the  estate  even  though  he  may  fail.^ 

Jamison  v.  Lindsay,  1  Bail.  79;  Buckels  v.  Carter,  6  Rich.  106;  Wright  u. 
Wright,  2  McCord,  Ch.  185;  Farrier  v.  Cairns,  5  Ohio,  45;  Harrison  v. 
Warner,  1  Blackf.  385;  Caperton  v.  Callson,  1  J.  J.  Marsh.  396;  Hanson 
V.  Jacks,  22  Ala.  5-49;  Callender  i'.  Keystone  M.  Ins.  Co.  23  Penn.  St.  471, 
overruling  Ewing  v.  Furness,  13  Penn.  St.  532 ;  Shaw  v.  Conway,  7  Penn. 
St.  136;  MuntorfFw.  MuntorfF,  2  Rawle,  180.  In  New  York,  trustees  and 
executors  must  pay  costs  if  they  fail.  Finley  ».  Jones,  6  Barb.  229;  Rose 
V.  Rose,  28  N.  Y.  184 ;  2  R.  S.  615,  §  17.  The  law  as  stated  in  Ketchum 
V.  Ketchum,  4  Cow,  87,  is  changed.  In  Virginia,  executors  pay  costs  like 
other  parties.     2  Lomax  ExVs,  38. 

1  Wms.  ExVs,  1718,  1792;  Hanson  v.  Jacks,  22  Ala.  549;  Alexander  u. 
Alexander,  5  Ala.  517;  Savage  v.  Dickson,  16  Ala.  260;  Roosevelt  v.  Elli- 
thorp,  10  Paige,  415 ;  Waterman  v.  Cochran,  2  Vt.  699. 

2  Hardy  v.  Call.  16  Mass.  530 ;  Williams  v.  Mattocks,  3  Vt.  189 ;  Con- 
nally  v.  Pardon,  1  Paige,  291 ;  Long  v.  Israel,  9  Leigh,  596  ;  Garner  «• 
Strode,  5  Lit.  314;  Moses  v.  Murgatroyd,  1  John.  Ch.  473;  Roosevelt  v. 
Ellithorp,  10  Paige,  415 ;  Dyer  v.  Potter,  2  John.  Ch.  152 ;  Arnoux 
V.  Steinbrenner,  1  Paige,  82;  Ex  parte  Croxton,  5  De  G.  «&  Sm.  482; 
Gage  V.  Rogei-s,  1  Strobh.  Eq.  370;  Capehart  v.  Huey,  1  Hill,  Eq.  405; 
Knox  V.  Picket,  4  Des.  92 ;  Mumper's  App.  3  W.  &  S.  413 ;  Gouverneur 
V.  Titus,  1  Edw.  Ch.  477 ;  Delafield  v.  Caldew,  1  Paige,  139 ;  Collins  ». 
Hoxie,  9  Paige,  81;  Carow  w.  Mowatt,  2  Edw.  Ch.  57;  Day  v.  Day,  2 
Green,  Ch.  549;  Morton  v.  Barrett,  22  Me.  257;  Miles  v.  Bacon,  4  J.  J. 
Marsh.  468;  Peyton  v.  McDowell,  3  Dana,  314;  Hill  v.  Morgan,  2  Moll. 
460;  Lowrie's  App.  1  Grant,  Ca.  373;  Graver's  App.  58  Penn.  St.  189; 
Casey's  Est.  47  Penn.  St.  424;  McElhenny's  App.  46  Penn.  St.  347. 

3  Armstrong's  Est.  6  Watts,  236 ;  Callighan  v.  Hall,  1  S.  &  R.  211 ; 
Getman  v.  Beardsley,  2  John.  Ch.  274;  Davis  v.  Davis,  2  Hill,  Eq.  377. 

*  Drew  V.  Wakefield,  54  Me.  291  ;  Abbott  v.  Bradstreet,  3  Allen,  587; 
Perrin  v.  Applegate,  1  McCarter,  531;  Collins  v.  Townley,  21  N.  J.  Eq. 
353. 


§§  891,  892.]       BETWEEN   TRUSTEES   AND    STRANGERS.  621 

And  so  it  is  within  the  discretion  of  the  court  in  some  States 
to  allow  the  opposite  party  costs  out  of  the  fund.  Thus  the 
executor  must  present  the  will  for  probate,  and  he  should  be 
allowed  his  reasonable  costs  for  vindicating  the  action  of  the 
testator  in  making  a  will.  So  the  heirs  are  not  to  be  disinher- 
ited except  upon  clear  proof  of  a  will.  If  there  is  any  doubt 
upon  that  question  or  issue,  they  are  entitled  to  a  fair  trial  ; 
and  the  court  may  in  its  discretion  allow  them  the  costs  of 
trial  out  of  the  estate.  And  costs  as  between  solicitor  and 
client  may  be  allowed  in  such  cases  to  both  parties  out  of  the 
fund  ;  ^  but  if  there  is  any  misconduct  on  the  part  of  the  exec- 
utor, he  may  be  compelled  to  pay  costs  ;  and,  so  if  there  is  no 
rcasonaljle  ground  to  dispute  the  will,  the  heirs,  as  contestants, 
may  be  ordered  to  pay  costs  .^  In  all  cases  where  trustees  are 
compelled  to  pay  costs  in  suits  with  strangers,  the  costs  are 
taxed  as  between  party  and  party,  and  not  as  between  attorney 
and  client.^  If  trusteed  are  brought  l:)efore  the  court  as  nec- 
essary parties  by  strangers,  they  are  entitled  to  their  costs  if 
they  disclaim  all  interest,  or  yield ;  ^  but  if  they  contest  the 
suit,  they  must  upon  failure  pay  costs  like  other  parties.^ 
.Though  if  they  make  a  claim,  by  way  of  submission  to  the 
court  whether  they  have  any,  they  may  have  their  costs.'' 

§  892.  Courts  of  equity  have  a  discretion  in  respect  to  the 
costs  of  proceedings  before  them.     And  this  discretion  cannot 

'  Ibid. 

"  Woodbury  V.  Obear,  7  Gray,  472;  Nickerson  v.  Buck,  12  Cush.  '3-i3  ; 
Day  15.  Day,  2  Green,  Ch.  549  ;  Townsliend  v.  Brooke,  9  Gill,  90  ;  Scott's 
Est.  9  Watts  &  S.  98  ;  Perrin  v.  Applegate,  1  McCarter,  631 ;  Collins  v. 
Towiiley,  21  N.  J.  Eq.  353.  But  a  different  rule  prevails  in  some  States. 
See  Mumper's  App.  3  W.  &  S.  443;  Rover's  App.  13  Penn.  St.  509;  Ver- 
ner's  Est.  6  Watts,  250. 

'  Mohun  V.  Mohun,  1  Swans.  201 ;  Saunders  w.  Saunders,  3  Jur.  (x.  s.)727; 
McKern  v.  Handy,  4  Md.  Ch.  234;  Ralston  v.  Telfair,  2  Dev.  &  Bat.  414. 

*  Bartle  v.  Wilkin,  8  Sim.  238;  Brown  v.  Lockhart,  10  Sim.  42(j. 

*  Rashleiirh  v.  Masters,  1  Ves.  Jr.  201. 

'  Ibid. ;  Wood  v.  Vanderburg,  6  Paige,  27S  ;  Morrell  v.  Dickey,  1 
John.  Ch.  163. 


522  COSTS.  [chap.  xxx. 

be  reviewed. 1  No  party  is  entitled  to  costs  except  by  a  special 
order.^  A  stranger  may  fail  in  a  suit  against  a  trustee,  and 
yet  the  court  may  not  order  costs  ;  and  the  fact  that  the  de- 
fendant was  a  trustee  will  not  control  the  discretion  of  the 
court. ^  So  a  party  may  have  a  decree  in  his  favor,  and  yet  be 
ordered  to  pay  the  costs."*  In  England,  a  mortgagee  is  entitled 
to  his  costs,  whether  the  suit  is  to  foreclose  or  redeem  the 
mortgage.  So,  where  trustees  are  necessary  parties,  as  mort- 
gagees, to  such  suits,  whether  they  were  original  parties  to 
the  mortgage,  or  some  interest  has  b^en  subsequently  assigned 
to  them,  they  are  entitled  to  their  costs.^  If  a  creditor  files 
a  bill  against  an  executor  for  an  account  and  payment  of  a 
debt,  the  executor  will  not  be  decreed  to  pay  costs  personally, 
if  the  assets  are  insufficient  to  pay  both  debts  and  costs,^ 
unless  he  had  misconducted  himself,  and  misapplied  the  assets.'' 
He  may  even  retain  his  own  costs  out  of  the  assets,^  though 
formerly  the  practice  was  different.^  ' 

§  893.  It  is  difficult  to  state,  as  a  general  proposition,  any 
rule  as  to  costs  in  suits  between  cestuis  que  trust  and  trustees 
in  relation  to  the  trust  fund.  Courts  of  equity,  having  almost 
exclusive  jurisdiction  over  such  suits,  have  at  the  same  time 
an  unlimited  discretion  over  the  costs  of  them  ;  and  decrees 

1  Taylor  v.  Root,  48  N.  Y.  687.  ^  Kreitz  v.  Frost,  55  Barb.  474. 

8  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326 ;  State  v.  Tolan,  33  N.  J.  L.  195 ; 
Kreitz  V.  Frost,  55  Barb.  474. 

*•  Armstrong  v.  Zane,  12  Ohio,  287;  Coleman  v.  Ross,  46  Penn.  St. 
180;  Gray  v.  Dougherty,  25  Cal.  266. 

'"  Brown  V.  Lockhart,  10  Sim.  426;  VVetherill  v.  Collins,  3  Mad.  255; 
Bartle  v.  Wilkin,  8  Sim.  238.     But  see  Horrocks  v.  Ledsam,  2  Coll.  208. 

8  Twistleton  v.  Thelwell,  Hard.  165;  Uvedale  v.  Uvedale,  3  Atk.  119; 
Davy  V.  Seys,  Mose.  204;  Morony  v.  Vincent,  2  INIoU.  461. 

'  Jefferies  v.  Harrison,  1  Atk.  468;  Bennett  v.  Atkins,  1  Y.  &  Col.  247; 
Wilkins  v.  Hunt,  2  Atk.  151. 

*  Bennett  v.  Going,  1  Moll.  529  ;  Tipping  v.  Power,  1  Hare,  405 ;  Ottley 
V.  Gilby,  8  Beav.  603;  Tanner  v.  Dancey,  9  Beav.  339. 

*  Humph  V.  Morse,  2  Atk.  408;  Sandys  v.  Watson,  2  Atk.  80;  Adair  v. 
Shaw,  1  Sch.  &  Lef.  280. 


§§  892-894.]      BETWEEN  TRUSTEES  AND  CESTUI  QUE  TRUST.        523 

as  to  the  costs  are  made  in  a  great  variety  of  forms,  to  meet 
every  degree  of  fidelity  or  neglect.  The  cases  are  ranged 
under  four  principal  heads:  (1.)  Where  trustees  are  allowed 
their  costs  ;  (2.)  Where  they  are  not  allowed  their  costs  ; 
(3.)  Where  costs  are  imposed  upon  them  ;  and  (4.)  Where 
they  are  allowed  costs  on  one  part  of  the  case,  and  are  refused, 
their  costs,  or  are  ordered  to  pay  the  costs,  upon  some  other 
part  of  the  case. 

§  894.  The  general  rule  is,  that  trustees  shall  have  their 
costs  either  out  of  the  trust  fund,  or  from  the  eestuis  que  trust 
personally.^  If  there  is  a  fund  within  the  control  of  the 
court,  they  may  have  their  costs  as  between  solicitor  and 
client.^  Where  there  is  no  fund  within  control  of  the  court, 
if  the  eestuis  que  trust  bring  the  trustees  before  it  to  olitain 
a  direction  as  to  the  rights  of  the  parties,  or  the  mode  of  ad- 
ministration, and  the  trustees  are  free  from  all  blame  or  fault, 
they  are  entitled  to  costs  against  the  eestuis  que  trust  person- 
ally, to  be  taxed  as  between  solicitor  and  client.^      The  reason 

^  Amand  v.  Bradbourne,  2  Cli.  Ca.  138;  Mohun  v.  Mobun,  1  Swans. 
201;  Pride  v.  Fooks,  2  Heav.  437;  Wliitmarsh  v.  Robertson,  1  Y.  &  Col. 
C'li.  717;  Hall  v.  Hallett,  1  Cox,  141;  AttV-Gen.  v.  London,  3  Bro.  Ch. 
171;  Coventry  v.  Coventry,  1  Keen,  758;  Curteis  v.  Candler,  6  Mad.  123; 
Taylor  w.  GlinvillQ,  3  Mad.  176;  Rashleigh  v.  Masters,  1  Ves.  Jr.  201; 
Simmes  v.  Rieiiinan,  2  Ves.  Jr.  38;  IMassett  v.  Pocoek,  t.  Fincli,  13G; 
Roche  V.  Hart,  11  Ves.  .58;  Landin  v.  Green,  Barn.  389;  Norris  v.  Xorris, 
1  Cox,  183;  1  Eq.  Ca.  Ab.  125;  Hosack  v.  Rogers,  9  Paige,  463;  Irving  v. 
De  Kay,  9  Paige,  533;  Minuse  v.  Cox,  5  John.  Ch.  451;  Graver's  App. 
60  Penn.  St.  189;  2  Daniel),  Chan.  Prac.  1411  (4th  Am.  ed.).  And  the 
same  gen(;ral  rules  apply  to  e.xeentors  or  ailministrators  brought  into  court. 
Jewett  V.  Woodward,  1  Edw.  2U0 ;  Dave.  Day,  2  Green  Ch.  549;  Mor- 
ton r.  Barrett,  22  Me.  257;  McKim  v.  Handy,  4  Md.  Ch.  234;  Town*hend 
t'.  Brooke,  9  Gill,  90;  Glass  v.  Ramsey,  9  Gill,  459;  Capehart  v.  Huey, 
1  Hill.  Eq.  405  ;  Hester  v.  Hester,  3  Ired.  Eq.  9  ;  Scott's  Est.  9  W.  &  S. 
98;  Burr  v.  McEwen,  1  Baldw.  C.  C.  154:  Bendall  v.  Bendall,  24  Ala.  295; 
Atcheson  v.  Robertson,  4  Rich.  Eq.  39  ;  Keeler  v.  Keeler,  3  Green  (X.  J.), 
267.. 

*  Mohun  V.  Mohnn,  1  Swans.  201 ;  Moore  v.  Frowd.  3  M.  it  C.  49. 

'  Att'y-Gen.  v.  Cuming,  2  Y.  &  Col.  Cli.  155;  Edeiiborough  r.  Canter- 
bury, 2  Russ.  112;  Downing  v.  Marshall,  37  N.  Y.  380. 


624  COSTS.  [chap.  xxx. 

involved  in  the  rule  is  this  :  trustees  have  no  beneficial  interest 
in  the  trust  property.  They  hold  it  for  the  accommodation 
and  benefit  of  others.  If  they  perform  their  duties  faithfully, 
and  are  guilty  of  no  unjust,  improper,  or  oppressive  conduct, 
they  ought  not  in  justice  and  good  conscience  to  be  put  to  any 
expense  out  of  their  own  moneys.  If,  therefore,  they  are 
brought  before  the  court  without  blame  on  their  part,  they 
should  be  reimbursed  all  the  expenses  that  they  incur,  and 
allowed  their  costs  as  between  solicitor  and  client  for  this  pur- 
pose. So,  if  it  appears  to  the  court  by  the  pleadings  or  other- 
wise that  they  have  sustained  charges  and  expenses  beyond 
the  costs  of  the  suit,  as  between  solicitor  and  client,  the  court 
will  order  such  further  expenses  properly  incurred  to  be  paid 
to  them ;  but  such  order  will  not  embrace  the  costs  and  ex- 
penses of  other  suits,  unless  specially  mentioned.^ 

§  895.  If  the  trustee,  or  one  of  the  trustees,  is  a  solicitor, 
he  can  make  no  professional  charge  against  the  trust  fund 
although  he  may  have  conducted  the  defence  ;  ^  but  the  court 
will  nevertheless  order  costs  as  between  solicitor  and  client, 
and  leave  them  to  be  taxed  by  the  proper  officer,  according  to 
the  rules  of  law,  upon  the  proper  vouchers  presented  to  him.^ 

§  896.  But  where  plaintiffs  bring  a  bill  against  defendants 
for  the  purpose  of  creating  a  trust  fund,  as  if  they  bring  a  bill 
to  convert  defendants  into  trustees  under  a  constructive  trust, 
or  to  compel  the  defendants  to  hold  certain  property  in  their 
hands  in  trust  for  the  plaintiffs,^  the  defendants   can   have 

^  Payne  v.  Little,  27  Beav.  83 ;  Hall  v.  Laver,  1  Hare,  577 ;  Amand  v. 
Bradbourne,  2  Ch.  Ca.  138 ;  Worrall  v.  Harford,  8  Ves.  8 ;  2  Dan.  Chan. 
Prac.  1411  (4th  Am.  ed.)  ;  Downing  v.  Marshall,  37  N.  Y.  380. 

*  Ante,  §  432,  and  cases  cited  ;  Meyer  v.  Galluchat,  6  Rich.  1;  ]\Ioore  v. 
Frowd,  3  M.  &  Cr.  45;  Lincoln  v.  Winsor,  9  Hare,  158;  Broughton  v. 
Broughton,  5  De  G.,  M.  &  G.  160. 

*  York  V.  Brown,  1  Coll.  260.  And  see  Re  Taylor,  23  L.  J.  Ch.  857; 
Bainbrigge  v.  Blair,  8  Beav.  588 ;  Cradock  v.  Piper,  1  Mac.  &  G.  688. 

■'  See  ante,  Chap.  VL 


§§  894-898.]   BETWEEN  TRUSTEES  AND  CESTUI  QUE  TRUST.    525 

costs  only  as  between  party  and  party,  if  the  plaintiffs  fail  ; 
for  the  suit  in  such  case  turns  out  to  be  between  strangers.^ 

§  897.  Where  a  trustee  neglected  to  appear  at  the  hearing, 
and  a  decree  nisi  was  made  against  him,  but  a  rehearing  was 
obtained  upon  i)aying  the  costs  of  the  day,  the  court  ordered 
costs  for  the  trustee,  saying  that  the  payment  of  the  costs  of 
the  day  makes  the  trustee  rectum  in  curia,  and  as  he  would 
have  been  entitled  to  his  costs  on  the  first  hearing,  he  now 
stands  in  the  same  situation.^  But  if  a  trustee  neglects  to 
ask  for  his  costs,  and  a  final  decree  is  passed,  lie  cannot  have 
a  rehearing  upon  the  question  of  costs  alone,  nor  can  he 
obtain  an  order  for  costs  upon  a  simple  petition  in  the  case.^ 

§  898.  Courts  always  scrutinize  transactions  between  parent 
and  children,  and  where  a  trustee  refused  to  convey  to  a  child 
or  parent  until  the  transaction  could  be  examined,  he  was 
allowed  his  costs,"*  and  so  if  the  breach  of  trust  is  very  trivial, 
he  may  be  allowed  his  costs.^  If  a  person  named  as  trustee  is 
made  defendant  in  a  suit,  and  by  his  answer  disclaims,  he 
will  be  allowed  liis  costs  as  a  party,  but  not  as  between  solici- 
tor and  client ;  for,  not  being  a  trustee,  he  must  be  an  ordi- 
nary party  :  ^  but  if  his  answer  is  unreasonably  long,  he  will 
have  only  the  costs  of  a  disclaimer."  But  the  plaintiff  may 
limit  the  extent  of  an  answer  required  from  a  defendant ;  and 
if  he  does  not  limit  it,  but  requires  an  answer  to  the  whole 
bill,  costs  of  tlie  whole  answer  will  be  allowed.^ 

1  Mohun  V.  Mohun,  1  Swans.  201;  Saunders  v.  Saunders,  3  Jur.  (x.  s.) 
728;  Gaylords  v.  Kelsbaw,  1  Wallace,  81. 

2  Norris  v.  Norris,  1  Cox,  183.  '  Colman  v.  Lord,  2  Cox,  206. 

*  King  V.  King,  1  De  G.  &  J.  663,  671. 

^  Fitzgerald  v.  Pringle,  2  Moll.  634 ;  Bailey  v.  Gould,  4  Y.  &  Col.  221 ; 
Knott  V.  Cottee,  16  Beav.  77;  Cotton  v.  Clark,  16  Beav.  134. 

^  Hickson  v.  Fitzgerald,  1  Moll.  14;  Norway  w.  Norway,  2  M.  &  K. 
278,  overruling  Sherratt  v.  Bentley,  1  R.  &  M.  655. 

'  Martin  v.  Persse,  1  Moll.  146. 

*  Albridge  v.  Westbrooke,  4  Beav.  213. 


5'2Q  COSTS.  [chap.  xxx. 

§  899.  The  general  rule,  that  trustees  are  to  have  their 
costs,  applies  wliether  they  are  plaintiffs  or  defendants  ;  ^  and 
so  all  persons,  whom  it  is  necessary  for  the  trustees  to  bring 
before  the  court  as  parties,  in  order  to  obtain  a  valid  decree 
to  protect  them  in  the  discharge  of  their  duties  in  disposing 
of  the  trust  fund,  will  be  entitled  to  their  costs.^  But  this 
rule  is  under  the  control  of  the  court,  and  the  conduct  of  the 
parties  will  be  carefully  scrutinized  ;  and  if  trustees  appear 
in  a  suit  when  it  is  unnecessary,  they  will  not  be  allowed  their 
costs.^  So  if  they  institute  a  suit  when  one  is  already  pending 
in  which  all  their  rights  can  be  determined,  they  will  not  have 
costs.^ 

§  900.  If  the  misconduct  or  failure  of  the  trustee  to  perform 
his  duty°  or  his  mere  caprice  or  obstinacy^  renders  a  suit 

'  Cur'teis  v.  Candler,  6  Mad.  123  ;  Coventry  v.  Coventry,  1  Keen,  758  ; 
Bowditch  V.  Soltyk,  99  Mass.  136;  Towie  v.  Swazey,  lOG  Mass.  108;  Sar- 
gent V.  Sargent,  103  Mass.  297  ;  Hepburn's  App.  65  Penn.  St.  472  ;  Priee's 
App.  54  Penn.  St.  492. 

2  Hicks  V.  Wrench,  6  Mad.  93;  Drew  v.  Wakefield,  54  Me.  291 ;  Abbott 
V.  Bradstreet,  3  Allen,  587 ;  2  Dan.  Chan.  Prac.  1412  (4th  Am.  ed.). 

3  Bennett  v.  Biddies,  10  Jur.  534 ;  Beer  v.  Tapp,  31  L.  J.  Ch.  513. 

^  Paekwood  v.  Maddison,  2  S.  &  S.  232;  2  Dan.  Chan.  Prae.  1412, 
1413  (4th  Am.  ed.). 

^  Sprmgett  v.  Dashwood,  2  Gif.  621;  Caffrey  v.  Darby,  6  Ves.  488; 
Hide  V.  Haywood,  2  Atk.  126 ;  Sheppard  v.  Smith,  2  Bro.  P.  C.  372 ;  Stac- 
poole  V.  Stacpoole,  1  Dow,  209 ;  Lyse  v.  Kingdom,  1  Coll.  184 ;  Powlett  v. 
Herbert,  1  Ves.  Jr.  297  ;  Byrne  v.  Norcott,  13  Beav.  346  ;  Fell  v.  Lutwidge, 
Barn.  319  ;  Brown  v.  How,  Barn.  354;  Littleholes  v.  Gascoyne,  3  Bro.  Ch. 
373 ;  Att'y-Gen.  v.  Hobert,  Ga.  t.  Finch,  259  ;  Ashburnham  v.  Thompson, 
13  Ves.  402;  Mosley  v.  AVard,  11  Ves.  5S1 ;  Haberdashers'  Company  v. 
Atl'y-Gen.  2  Bro.  P.  C.  370 ;  Crackett  v.  Bethune,  1  J.  &  W.  586  ;  Att'y- 
Gen.  V.  Wilson,  1  Cr.  &  Phil.  1 ;  Baker  v.  Carter,  1  Y.  &  Col.  252;  Wilson 
V.  Wdson,  2  Keen,  249;  Franklin  v.  Frith,  3  Bro.  Ch.  433;  Piety  v.  Stace, 
4  Ves.  620;  Whistler  v.  Newman,  4  Ves.  129;  Seers  v.  Hind,  1  Ves.  Jr. 
294  ;  Adams  r.  Clifton,  1  Russ.  297  ;  Egerton  v.  Egerton,  2  Green  (N.  J.), 
419;  Att'y-Gen.  r.  Drapers' Co.  4  Beav.  67  ;  Att'y-Gen.  v.  Cains  Coll.  2 
Keen,  169;  Att'y-Gen.  v.  East  Retford,  2  M.  &  K.  35;  Kent  v.  Hutehins, 
50  N.  II.  92  ;  Jefferys  v.  Marshall,  19  W.  R.  94;  Ellis  v.  Barker,  L.  R.  7 
Ch.  104;  Lathrop  c.  Smalley,  23  N.  J.  Eq.  192. 

^  Smith  r.   Bolden,  33  Beav.  266  ;  Scarborough  v.  Pai-ker,  1  Ves.  Jr. 


§§  899,  900.]       WHERE   TRUSTEES   MUST   PAY   COSTS.  527 

necessary,  he  must  pay  the  costs.  So  if  he  refuses  to  account,^ 
or  wilfully  misstates  the  accounts,^  or  by  any  chicanery  in  his 
answer  keeps  the  cestui  que  trust  from  a  correct  knowledge  of 
the  accounts,^  or  if  he  has  kept  the  accounts  in  a  careless  and 
confused  manner,'*  or  has  mingled  the  trust  fund  with  his  own 
money  and  not  accounted,^  the  court  will  charge  him  with  the 
costs.  If  an  executor  deni-es  that  there  are  assets,  contrary  to 
the  fact,  he  will  be  charged  with  the  costs.^  So  if  a  trustee 
alleges  in  his  answer,  that  the  cestui  que  trust  is  largely  in- 
debted to  him,  and  after  a  long  investigation  it  turns  out  that 
the  trustee  is  greatly  in  arrears,  he  will  he  decreed  to  pay 
costs.'''  Or  even  if  the  amount  due  the  trustee  is  much  less 
than  he  claimed,  he  will  be  ordered  to  pay  the  costs.^  So  if  a 
trustee  sets  up  a  claim  of  his  own  to  the  trust  property,  and 
fails  in  his  claim,  he  must  pay  all  the  costs.^     So  if  a  trustee 

267  ;  Burrows  v.  Greenwood,  4  Y.  &  Col.  251  ;  Kirby  v.  Mash,  3  Y.  &  Col. 
295;  Penfold  v.  Boueh,  4  Hare,  271;  Jones  v.  Lewis,  1  Cox,  199;  Taylor 
V.  Glanville,  3  Mad.  178;  Thorby  v.  Yeates,  1  Y.  &  Col.  Ch.  438;  May  v. 
Armstron<;,  1  W.  N.  233;  Hampshire  v.  Bradley,  2  Col.  34;  Jones  v.  Lewis, 
1  Cox,  199;  Moore  v.  Prance,  9  Hare,  299;  Firmin  v.  rulham,  2  De  G.  & 
Sm.  99 ;  Brinton's  Est.  10  Barr,  408 ;  Goodson  v.  Ellisson,  3  Russ.  583 ; 
Lyse  V.  Kingdom,  1  Col.  184;  Lathrop  v.  Smalley,  23  X.  J.  Eq.  192. 

'  Boynton  v.  Richardson,  31  Beav.  340;  Wroe  v.  Seed,  4  Gif.  425; 
Kemp  t).  Burn,  4  Gif.  348;  Burnham  v.  Bailing,  7  Green  (N.  J.),  310; 
Sheppard  v.  Smith,  2  Bro.  P.  C.  372;  Avery  v.  Osborne,  Barn.  349. 

*  Flannagan  v.  Nolan,  1  Moll.  86;  Sheppard  v.  Smith,  2  Bro.  P.  C.  372. 
^  Reech  v.  Kennegal,  1  Ves.  123;  Avery  v.  Osborne,  Barn.  349. 

*  Xorbury  v.  Calbeck,  2  Moll.  401. 

*  Bogle  V.  Bogle,  3  Allen,  158. 

'  Sandys  v.  Watson,  2  Atk.  80;  Vaughan  v.  Thurston,  Colles,  P.  C.  175; 
Mallabar  v.  Mallabar,  t.  Talb.  71;  Sheppard  v.  Smith,  2  Bro.  P.  C.  372. 
^  Parrott  v.  Treby,  Pr.  Ch.  254 ;  Eglin  v.  Sanderson,  3  Gif.  434. 

*  Fozier  v.  Andrews,  2  Jo.  &  La.  199 ;  Att'y-Gen.  i;.  Brewers'  Co.  1  P. 
Wms.  376. 

9  Lloyd  V.  Spillett,  3  P.  Wms.  344;  Bayly  v.  Powell,  Pr.  Ch.  92; 
Willis  V.  Hiscox,  4  M.  &  C.  179;  Att'y-Gen.  v.  Drapers'  Co.  4  Beav. 
67;  Att'y-Gen.  u.  Christ's  Hospital,  4  Beav.  73;  Irwin  i'.  Rogers,  12  Ir. 
Eq.  159  ;  Lawson  v.  Copeland,  2  Bro.  Ch.  156 ;  Baggot  r.  Baggot,  10  L. 
J.  Cli.  (n.  s.)  116;  Lemmond  v.  Peoples,  6  Ir.  Eq.  137;  WatLiman  r. 
Cochran,  2  Vt.  699. 


528  COSTS.  [chap.  xxx. 

refuses  the  use  of  his  name  in  the  prosecution  of  a  suit  for  the 
interests  of  the  trust  estate  and  the  cestui  que  trust,  whereby 
the  cestui  que  trust  is  obliged  to  institute  the  suit  in  his  own 
name,  and  join  the  trustee  as  a  defendant,  the  court  will  order 
the  trustee  to  pay  the  costs. ^  So  if  a  trustee  has  some  private 
interest  of  his  own,  separate  from  and  independent  of  the  trust, 
and  he  compels  the  cestui  que  trust  to  come  into  a  court  of 
equity,  merely  for  the  purpose  of  procuring  a  decision,  at  the 
expense  of  the  estate,  upon  some  point  relating  to  his  own 
private  interest,  the  court  will  decree  him  to  pay  the  whole 
costs.^  The  trust  estate  is  not  chargeable  with  the  costs  of 
defending  one  of  the  trustees  upon  inquisition  of  lunacy.^  So 
where  trustees  in  their  answer  pleaded  ignorance  of  the  trust, 
but  the  court  inferred,  from  the  papers  annexed  to  the  answer, 
an  intention  to  defeat  the  ends  of  justice,  costs  were  imposed 
upon  the  trustees ; '^  and  where  the  court  ordered  the  produc- 
tion of  papers,  and  very  material  ones  were  suppressed,  costs 
were  imposed  upon  the  trustees ;  ^  and  where  an  executor  puts 
the  plaintiffs  unnecessarily  to  proof  of  their  relationship,  costs 
are  imposed.^  So  if  the  trustees  set  up  any  unfounded  or  in- 
equitable defence.'     It  was  said  by  Lord  Thurlow,  that,  where 

'  Guyton  v.  Shane,  7  Dana,  498;  Reade  v.  Sparkes,  1  Moll.  8  ;  Collyer  v. 
Dudley,  Y.  &  Col.  422  ;  Blount  v.  Burrow,  2  Bro.  Ch.  90.  But  see  Brown 
V.  Lockhart,  10  Sim.  426. 

*  Henley  v.  Phillips,  2  Atk.  48  ;  Manning  v.  Manning,  1  John.  Ch.  5o5  ; 
Ralston  V.  Telfair,  2  Dev.  &  Bat.  414;  Ingrana  v.  Kirkpati-ick,  8  Ired.  Eq. 
62.  But  trustees  have  a  right  to  the  aid  of  the  court  in  accounting,  and  to 
their  costs ;  therefore  trustees  may  have  their  costs  for  accounts,  although 
they  claim  an  interest  in  the  trust  fund  or  its  proceeds  as  one  of  the  cesiuis 
que  trust.  Atcheson  v.  Robertson,  4  Rich.  Eq.  44 ;  Pell  v.  Ball,  Speers, 
Eq.  48;  Hartzell  v.  Brown,  5  Binn.  138;  Royer's  App.  13  Penn.  St.  569; 
Raybold  v.  Raybold,  20  Penn.  St.  308 ;  Worrell's  App.  23  Penn.  St.  44 ; 
Halmon's  App.  24  Penn.  St.  172  ;  Carpenter's  App.  3  Grant's  Cas.  381 ; 
Wham  u.  Love,  Rice,  Eq.  51. 

^  Bickham  v.  Smith,  55  Penn.  St.  335. 

*  Att'y-Gen.  v.  East  Retford,  2  M.  &  K.  35. 

5  Borough  of  Hertford  v.  Poor  of  Hertford,  2  Bro.  P.  C.  377. 

*  Lawson  v.  Copi'land,  2  Bro.  Ch.  156. 
'  Burnham  v.  Dalling,  1  Green  Ch.  310. 


§§  900,  901.]     TRUSTEES  NOT  ALLOWED  COSTS.  529 

the  court  is  obliged  to  give  interest  as  a  remedy  for  a  breach  of 
trust,  costs  will  follow  of  course  ;  ^  that  is  to  say,  that,  where 
a  suit  is  occasioned  by  the  misconduct  of  trustees,  the  charg- 
ing them  with  interest  is  such  an  indication  of  misconduct  that 
costs  follow  :  and  the  same  principle  was  acted  ujton  in  Frey  v. 
Frey  ;  ^  but  Sir  William  Grant  denied  that  there  was  any  such 
rule,  and  said  that  there  miglit  be  cases  when  a  trustee  could 
be  charged  with  interest,  but  not  with  costs.'* 

§  901.  Where  a  trustee  is  guilty  of  some  misconduct  which 
does  not  amount  to  a  wilful  breach  of  the  trust,  or  of  some 
omission  of  duty  which  is  of  some  inconvenience  to  the  trust, 
he  will  not  be  allowed  his  costs.*  Thus,  if  he  files  an  im- 
proper answer,  he  will  not  be  allowed  the  costs  of  the  answer.^ 
So  an  innocent  mistake  by  the  trustee  may  deprive  him  of  his 
costs,*'  or  the  court  may  decree  him  to  pay  part  of  the  costs,"" 
or  even  give  him  his  whole  costs.^     So,  where  an  executor  was 

^  Seers  v.  Hind,  1  Ves.  Jr.  294.  And  see  Franklin  v.  Frith,  3  Bro.  Ch. 
433;  Moseley  v.  Ward,  11  Ves.  681;  Piety  v.  Stace,  4  Vos.  G-20. 

'  Frey  v.  Frey,  2  C.  E.  Green,  71 ;  Warbass  v.  Armstrong,  2  Stockt. 
266 ;  Dunseomb  v.  Dunscomb,  1  John.  Ch.  508. 

^  Ashburnham  v.  Thompson,  13  Ves.  404 ;  Tebbs  v.  Carpenter,  1  Mad. 
308;  Woodhead  V.  Marriott,  C.  P.  Cooper,  62,  1837,  183S;  Ilolgate  r. 
Hayworth,  17  Beav.  259;  Fletcher  v.  Walker,  3  Mad.  73;  ^lousley  v. 
Carr,  4  Beav.  49 ;  MatKenzie  v.  Taylor,  7  Beav.  467  ;  Fozier  v.  Andrews, 
2  J.  &  Lat.  199;  Cotton  v.  Clark,  10  Jur.  879. 

*  O'Callagan  v.  Cooper,  5  Ves.  129;  Massey  v.  Banner,  4  Mad.  113; 
Newton  V.  Bennett,  1  Bro.  Ch.  362 ;  Mousley  v.  Carr,  4  Beav.  49 ;  Eng- 
land V.  Downs,  6  Beav.  279;  Dawson  v.  Parrot,  3  Bro.  Ch.  236;  Spencer 
V.  Spencer,  11  Paige,  159. 

^  Eddovves  v.  Eddowes,  30  Beav.  603. 

®  Fitzgerald  v.  Fitzgerald,  6  Ir.  Efj.  145 ;  O'Callagan  t".  Cooper,  5  Ves. 
117;  Mousley  v.  Carr,  4  Beav.  49;  Devey  v.  Thornton,  9  Hare,  222;  Att'y- 
Gen.  V.  Drapers'  Co.  4  Beav.  71 ;  Bennett  v.  Going,  1  Moll.  529;  Robertson 
V.  Wendell,  6  Paige,  322. 

'  East  V.  llyall,  2  P.  Wms.  284. 

'*  Taylor  V.  Tabrnni,  6  Sim.  281  ;  Flanagan  v.  Nolan,  1  Moll.  84 ;  Travers 
V.  Townsend,  1  Moll.  496;  Alt'y-Gen.  v.  Cains  College,  2  Keen,  150,  170; 
Bennett  r.  Atkins,  1  Y.  *&  Col.  247,  249;   Fitzgerald  v.  O  Flaherty,  1  :Mo11. 

VOL.  II.  34 


530  COSTS.  [chap.  XXX. 

entitled  to  have  his  accounts  taken  under  the  direction  of  the 
court,  he  was  not  allowed  his  costs,  because  of  his  conduct  in 
obstructing  the  settlement  of  the  accounts ;  ^  but  costs  were 
not  imposed  upon  him.  So,  if  a  trustee  makes  a  claim  in  his 
account  which  is  very  much  reduced  by  the  court,  costs  will 
not  be  allowed  him.^  The  court  will  give  no  costs  to  a  default- 
ing trustee  ;  as,  if  a  balance  is  found  due  from  a  trustee,  he 
can  have  no  costs  until  he  pays  it.^  So  if  a  trustee  renders  it 
necessary  to  institute  a  suit  for  the  appointment  of  a  new  trus- 
tee, where  it  might  have  been  done  by  agreement  of  the  parties, 
he  will  not  be  allowed  his  costs.'*  But  if  the  trustee  has  a  good 
reason  for  his  discharge,  as  the  misconduct  of  the  cestui  que 
trust,  or  his  own  age  and  infirmities,  he  may  have  the  costs  of 
a  proceeding  in  equity  for  his  discharge.^  Where  a  trustee 
refuses  to  convey,  or  insists  upon  making  an  improper  convey- 
ance, and  to  improper  persons,  he  may  be  refused  his  costs ;  ^ 
or  he  may  even  be  made  to  pay  costs,"  although  he  acts  under 

347 ;  Atfy-Gen.  v.  Drummond,  2  Conn.  &  Laws.  98 ;  Royds  v.  Royds,  14 
Beav.  54 ;  Fitzgerald  v.  Pringle,  2  Moll.  534. 

1  Be  King,  11  Jur.  (n.  s.)  899 ;  Raphael  v.  Boehm,  13  Ves.  592.  All 
such  matters  are  very  much  within  the  discretion  of  the  court,  and  costs  of 
the  audit  of  the  accounts  may  be  allowed  although  there  has  been  a  breach 
of  the  trust.     Norris's  App.  71  Penn.  St.  115,  126. 

^  Att'y-Gen.  v.  Brewers'  Co.  1  P.  Wms.  376;  Fozier  v.  Andrews,  2  Jo. 
&  Lat.  199 ;  Dawson  v.  Parrot,  3  Bro.  Ch.  236 ;  Ball  v.  Montgomery,  2 
Ves.  Jr.  191. 

2  Birks  V.  Micklethwait,  33  Beav.  409. 

*  Howard  v.  Rhodes,  1  Keen,  581;  Greenwood  v.  Wakeford,  1  Beav. 
580;  Benbore  v.  Davies,  11  Beav.  369;  Be  Tryon,  7  Beav.  496;  Gabril  v. 
Sturgis,  6  Hare,  97 ;  Jones  v.  Stockett,  2  Bland,  409 ;  Be  Molony,  2  J.  & 
Lat.  391 ;  Porter  v.  Watts,  21  L.  J.  Ch.  211 ;  Cruger  v.  Halliday,  11  Paige, 
314. 

*  Coventry  v.  Coventry,  1  Keen,  758;  Greenwood  v.  Wakeford,  1  Beav. 
676. 

6  Ellis  V.  Ellis,  1  Russ.  368 ;  Knight  v.  Martin,  1  R.  &  M.  70  ;  Campbell 
r.  Home,  1  N.  C.  C.  664;  Angier  v.  Stannard,  3  M.  &  K.  566;  Poole  v. 
Pass,  1  Beav.  600. 

'  Jones  V.  Lewis,  1  Cox,  199;  Willis  v.  Hisco.\,  4  M.  &  Cr.  197; 
Thorby  v.  Yeates,  1  N.  C.  C.  438. 


§§  901,  902.]       WHERE   COSTS    MAY   BE    APPORTIONED.  531 

the  advice  of  counsel.^  But  a  trustee  may  properly  refuse  to 
convey,  where  there  is  any  doubt  as  to  the  person  to  whom  the 
conveyance  should  be  made,  or  as  to  the  property  to  be  con- 
veyed, or  as  to  the  form  of  the  conveyance,  and  he  may  take 
the  advice  of  the  court  and  have  the  costs  of  the  suit.^ 

§  902.  Where  a  trustee  commits  a  breach  of  trust  the  gen- 
eral rule  is,  that  he  must  pay  the  costs  of  the  suit  to  rectify  the 
wrong ;  but  if  there  are  other  matters  involved  in  the  suit,  in 
which  the  trustee  is  found  to  be  without  fault,  he  may  have  his 
costs  in  such  other  matters.^  Thus  where  a  bill  charged  a 
trustee  with  breach  of  trust  in  respect  to  both  the  real  and  per- 
sonal property,  and  he  was  found  to  be  wrongfully  charged  in 
relation  to  the  real  estate,  he  was  ordered  to  pay  costs  for  only 
one  part  of  the  bill.*  So  where  there  was  a  bill  to  set  aside  a 
purchase  by  the  trustees  of  part  of  the  trust  proi)erty,  and  also 
for  an  account,  the  trustees  were  allowed  the  costs  of  the 
account,  and  ordered  to  pay  the  costs  of  the  other  part  of  the 
bill.°  So  where  the  suit  did  not  originate  in  the  misconduct  of 
the  trustee,  but  in  the  course  of  its  progress  a  breach  of  trust 
appeared,  the  court  ordered  the  trustee  to  pay  so  much  of  the 
costs  as  were  caused  by  the  breach  of  the  trust,  and  allowed 
him  the  costs  of  the  other  part  of  the  suit.^     So  where  a  trus- 

'  Angier  v.  Stannard,  3  M.  &  K.  566;  Devey  v.  Thornton,  9  Hare,  233. 
But  Poole  V.  Pass,  1  Beav.  600,  is  contrar}-,  and  the  better  opinion  is  that 
Angier  v.  Stannard  is  not  good  hiw.  Vez  v.  Eiuerj',  5  Ves.  144;  Hampson 
0.  Bramwood,  1  Mad.  392;  Bush's  App.  33  Penn.  St.  85;  Harper  v.  Mun- 
day,  7  De  G.,  M.  &  G.  369.  But  see  Boulton  v.  Beard,  27  Eng.  L.  &  Eq. 
421. 

2  Goodsonr.  Ellison,  3  Russ.  593;  Poole  v.  Pass,  1  Beav.  600;  Whit- 
marsh  V.  Robinson,  1  N.  C.  C.  715;  Holford  v.  Phipps,  3  Beav.  434; 
4  Beav.  475  ;  Taylor  v.  Glanville,  1  Mad.  176  ;  Thorby  i'.  Yates,  1  N.  C.  C. 
438;  Dustan  v.  Dustan,  1  Paige,  509;  Armstrong  v.  Zane,  12  Ohio,  287. 

'  Pocock  V.  Reddington,  5  Ves.  800;  Hewett  v.  Foster,  7  Beav.  348; 
Bate  V.  Hooper,  5  De  G.,  M.  &  G.  345;  Re  King,  11  Jur.  (n.  s.)  899. 

*  Ibid.  ^  Sanderson  v.  Walker,  13  Ves.  601. 

«  Tebbsr.  Carpenter,  1  Mad.  290;  Heigington  v.  Grant,  1  Phil.  600; 
Pride  v.  Fooks,  2  Beav.  430 ;  Newton  v.  Bennett,  1  Bro.  Ch.  359. 


532  COSTS.  [chap.  xxx. 

tee  ought  to  have  had  his  costs  on  one  part  of  a  suit,  and  to 
have  paid  costs  on  another,  the  court  allowed  no  costs  on  cither 
side.^  If  the  breach  of  trust  is  very  trifling,  the  court  may 
overlook  it,  and  give  the  trustee  his  whole  costs.-  So  where 
grave  charges  of  fraud  were  made  against  trustees,  which 
failed,  but  they  were  removed  on  another  ground,  they  were 
allowed  their  costs.^ 

§  903.  Where  trustees  are  decreed  to  pay  the  costs  of  a  suit 
occasioned  by  their  misconduct,  or  where  they  are  refused  their 
costs  for  the  same  reason,  they  cannot  charge  the  expenses  of 
the  suit  to  the  trust  fund  in  their  hands ;  as  their  misconduct 
and  breach  of  duty  were  personal,  so  the  costs  are  personal, 
and  must  be  borne  by  them  personally.^ 

§  903  a.  It  is  sometimes  important  to  determine  out  of  what 
fund  in  the  hands  of  executors  or  trustees  the  costs  of  a  suit 
are  to  be  paid.  The  general  rule  is,  that  when  a  testator  or 
settlor  has  expressed  himself  so  ambiguously  in  relation  to  the 
disposition  of  his  estate,  or  of  any  part  of  it,  that  it  is  necessary 
for  the  executors  or  trustees  to  apply  to  a  court  of  equity  for 
the  construction  of  the  instrument  of  trust,  and  for  instructions 
and  directions,  the  costs  of  all  necessary  parties  shall  be  paid 
out  of  the  general  assets  ;  and  these  are  generally  the  residuary 
assets  ;  for  the  costs  of  executing  the  will  and  of  administering 
the  trust  are  among  the  general  expenses  of  settling  an  estate, 
and  must  be  paid  before  any  thing  can  be  distributed  to  residu- 
ary legatees.  One  reason  of  the  rule  is,  that  in  the  case  of 
specific  legacies,  the  legatee  is  entitled  to  the  amount  given  if 
the  estate  is  sufficient  for  the  purpose  ;  and  to  charge  any  cost 

'  Newton  v.  Bennett,  1  Bro.  Ch.  362. 

2  Fitzgerald  v.  Priiigle,  2  Moll.  534;  Bailey  v.  Gould,  -t  Y.  &  Col.  221 ; 
Knott  V.  Cottee,  16  Beav.  77 ;  Cotton  v.  Clark,  16  Beav.  134. 

^  Stanes  v.  Parker,  9  Beav.  385. 

■•  Att'y-Gen.  v.  Dangers,  33  Beav.  621 ;  Lathrop  v.  Suialley,  23  N.  J.  Eq. 
192. 


§§  902-903  «.]      WHERE  COSTS  MAT  BE  APPORTIONED.  533 

upon  the  portion  of  any  one  legatee,  or  of  any  class  of  legatees, 
would  be  to  change  the  proportion  fixed  by  the  testator.  And 
further,  if  the  testator  or  settloi*  lias  himself  created  the  difficulty 
by  the  form  of  his  expressions,  it  is  equitable  that  his  general 
estate  should  pay  for  clearing  up  the  doubts  raised  by  his  own 
language.^  But  where  a  legacy  has  been  severed  from  the  gen- 
eral estate,  and  after  it  is  so  severed  it  becomes  the  subject  of  a 
suit,  by  the  result  of  which  the  general  estate  will  not  be  at  all 
affected,  the  costs  of  the  suit  must  be  borne  by  the  particular 
fund  concerning  which  the  suit  arose.^     If  a  party  entitled  to 

1  Studholme  v.  Hodgson,  3  P.  Wms.  308;  Joliffe  v.  East,  3  Bro.  Cli.  25, 
27  ;  Baugh  v.  Reed,  3  Bro.  Ch.  193;  1  Ves.  Jr.  257;  Att^y-Gen.  v.  Hurst,  2 
Cox,  3G4  ;  3  Bro.  Ch.  375,  381  ;  Bagsliawv.  Newton,  9  Mod.  283  ;  Handley 
V.  Davies,  5  Jur.  190 ;  Barrington  v.  Tristram,  6  Ves.  345,  349  ;  Howse  v. 
Chapman,  4  Ves.  542  ;  Anon.  Mos.  5  ;  Nisbett  v.  Murray,  5  Ves.  149,  158 ; 
Pearson  v.  Pearson,  1  Sch.  &  L.  12;  Wilson  v.  Brownsniith,  9  Ves.  180, 
182;  Wilson  v.  Squire,  13  Sim.  212;  Smith  v.  Smith,  4  Paige,  271;  Bow- 
ditch  V.  Soltyk,  99  Mass.  136,  141 ;  Sawyer  v.  Baldwin,  20  Pick,  378,  388; 
King  V.  Strong,  9  Paige,  94;  Irving  v.  l)e  Kay,  9  Paige,  521 ;  Morgridge  v. 
Thackwell,  7  Ves.  87  ;  Wilkinson  v.  Lindgren,  L.  R.  5  Ch.  570;  Tann  i'.  Tann, 
L.  R.  7  Eq.  436;  Monks  v.  Monks,  7  Allen,  401,  406;  Abbott  v.  Brad- 
street,  3  Allen,  587 ;  Bigelow  v.  Morang,  103  Mass.  287 ;  Bliss  v.  Amer. 
Tract  Soo.  2  Allen,  334;  Dean  v.  Home  lor  Aged  Women,  Mass.  Sup.  Jud. 
Court,  April,  1872.  But  it  is  said  that  this  rule  applies  only  to  cases 
arising  out  of  wills,  and  not  to  questions  that  arise  upon  deeds  of  trust,  though 
it  is  hard  to  point  out  a  distinction  in  cases  where  a  trustee  brings  a  bill  for 
instructions  in  the  nature  of  a  bill  of  interpleader ;  and  it  would  seem  that  the 
general  rule,  thdt  where  a  trustee  finds  it  necessary  to  seek  for  the  direction 
of  a  court  of  equity,  all  parties  whom  it  is  necessary  to  bring  before  the  court 
for  his  protection  are  entitled  to  their  costs  out  of  the  iund,  should  prevail. 
See  ante,  §  899.  See  also  Hampson  v.  Broadwood,  1  Mad.  .')81,  396  ;  Orford 
«.  Churchill,  3  Ves.  &  B.  59,71;  Collett  v.  Collctt,  14  W.  R.  446.  In 
suits  to  rectify  settlements  under  a  deed  where  no  blame  was  imputable  to 
any  of  the  parties,  costs  were  allowed  out  of  the  fund.  Stock  v.  Vining, 
25  Beav.  235;  2  Dan.  Ch.  Pr.  1427. 

'^  Jenour  v.  Jenour,  10  Ves.  562,  573;  Shaw  v.  Pickthall,  Dan.  92  ;  Man- 
chester f.  Bonham,  3  Ves.  61,  64;  King  v.  Taylor,  5  Ves.  806,  810;  Wilson 
V.  Squii-e,  13  Sim.  212;  Dugdale  v.  Dugdale,  12  Beav.  247,  251  ;  Govern- 
esses' Institution  v.  Rusbridger,  18  Beav.  467  ;  Richardson  v.  Rusbridger, 
20  Beav.  136 ;  Att'y-Gen.  v.  Lawes,  8  Hare,  32,  43 ;  Pennington  v.  Buck- 
ley, 6  Hare,  451,  455;  Cotton  i;.  Penrose,  13  Jur.  761 ;  Birdsallr.  Hewlett, 
1  Paige,  82. 


534  COSTS.  [chap.  xxx. 

a  legacy  or  a  share  of  an  estate  incumbers  it,  and  renders  a 
suit  necessary  for  the  proper  administration  of  that  share,  such 
particular  fund  must  bear  the  expense  of  the  suit.^  If  the  suit 
concerns  several  separate  funds,  but  has  no  relation  to  the  gen- 
eral estate,  the  several  funds  must  bear  the  costs  pro  rata? 

'  Greedy  v.  Lavender,  11  Beav.  417 ;  Remnant  v.  Hood,  27  Beav.  613 ; 
Ward  V.  Yates,  1  Dr.  &  Sni.  80;  Brace  v.  Ormond,  2  J.  &  W.  435;  Garey 
v.  Whittingham,  5  Beav.  268,  270 ;  Farr  v.  Sheriffe,  4  Hare,  528 ;  2  Dan. 
Ch.  Pr.  1451. 

2  Heighten  v.  Grant,  1  Beav.  228;  Jolinston  v.  Todd,  8  Beav.  489,  492 
Hopkinson  v.  Ellis,  10  Beav.  169,  176 ;  Sanders  v.  Miller,  25  Beav.  154 
Elhorne  v.  Goode,  14  Sim.  165,  179;  Christian,  2  Foster,  2  Phil.  161,  166 
Att'y-Gen.  v.  Lawes,  8  Hare,  32;  2  Dan.  Cb.  Pr.  1432  (4th  Am.  ed.). 


§§  903  a,  904.]     allowances,  etc.,  to  trustees.  535 


CHAPTER   XXXI. 

ALLOWANCES    AND    COMPENSATION   TO    TRUSTEES. 

§  904.  In  England,  trustees  can  have  no  compensation  for  time,  trouble,  and  services. 

§  905.  Exception  as  to  estates  abroad. 

§  906.  Nor  when  thej'  carry  on  business  as  trustees. 

§  907.  A  trustee  has  a  lien  on  the  trust  estate  for  his  expenses. 

§  908.  From  wiiat  fund  the  expenses^are  to  be  paid. 

§  909.  Trustee  may  call  upon  cestui  que  trust  for  expenses  if  the  trust  fund  is  insuffi- 
cient. 

§  910.  The  general  rule  as  to  an  allowance  of  his  expenses. 

§  911.  The  trustee  must  keep  an  account  of  ids  expenses. 

§  912.  They  may  eniplo}'  necessary  assistants. 

§  913.  The  expenses  may  depend  upon  the  character  of  the  trust,  and  the  power  and 
duties  of  the  trustees. 

§  914.  Trustees  will  be  allowed  for  all  accidental  losses  which  happen  without  their 
fault. 

§  915.  For  what  disbursements  trustees  may  be  allowed. 

§  916.  The  English  rule  as  to  compensation  for  services,  time,  and  trouble,  not  noted 
upon  in  the  United  States. 

§  917.  Trustees  entitled  to  reasonable  compensation.     Rules  in  the  various  States. 

§  918.  Rules  and  statutes  in  the  various  States.    Note. 

§  919.  Practice  in  various  States. 

§  904.  Nothing  is  better  established  in  England  than  that  a 
trustee  can  have  no  allowance  or  compensation  for  his  time 
and  trouljlc  in  the  execution  of  a  trust.^  The  principle  on 
which  the  rule  is  founded  is,  tliat  a  trustee  can  "  make  no 
profit  out  of  his  office  ; "  and  the  reason  of  the  principle  is, 
that  a  trustee  shall  be  placed  in  no  position  where  his  interest 
may  be  opposed  to  his  duty.'^     The  rule  applies  not  only  to 

'  Robinson  v.  Pett,  3  P.  Wms.  2.51 ;  2  Lead.  Ca.  Eq.  206 ;  Brocksopp 
V.  Barnes,  Cas.  t.  Finch,  IJiJl ;  AylilFe  v.  Murray,  2  Atk.  58;  In  jeOrmshy, 
1  B.  &  B.  189;  Charity  Corpo.  v.  Sutton,  2  Atk.  406;  Bonithon  v.  Hock- 
more,  I  Vern.  316. 

*  New  V.  Jones,  cited  in  Moore  v.  Frowd,  3  M.  &  Cr.  .")0  ;  Burton  r. 
Wookey,  6  Mad.  368;  llaniilton  v.  Wright,  9  CI.  &  Fin.  111. 


536  ALLOWANCES,    ETC.,    TO    TRUSTEES.         [CHAP.  XXXI. 

trustees  strictly  so  called,  but  also  to  all  who  hold  a  fiduciary 
relation,  as  executors  and  administrators,  mortgagees,  receiv- 
ers, guardians,  and  officers,  directors,  and  trustees  of  corpora- 
tions.^ If  trustees  render  services  to  the  trust  estate  in  their 
professional  characters,  as  solicitors,  factors,  brokers,  bankers, 
or  in  any  other  capacity,  they  can  receive  no  compensation  or 
commissions  for  such  services.^  And  if  a  bonus  has  been 
allowed  them  by  the  cestui  que  trust  in  the  settlement  of  their 
accounts,  the  settlement  may  be  set  aside.-^ 

§  905.  An  exception  to  this  rule  has  been  established  in  the 
cases  of  trustees  for  absent  owners  of  estates  in  the  West  Indies, 
of  administrators  of  estates  in  the  East  Indies,  and  of  mort- 
gagees in  possession  of  estates  in  Jamaica.  Courts  of  chancery 
in  England  have  allowed  commissions  as  compensation  for  time 
and  trouble  in  these  instances.^ 

'  Scattergood  v.  Harrison,  Mose.  128;  How  v.  Godfrey,  Cas.  t.  Finch, 
3G1 ;  Sheriff  v.  Axe,  4  Russ.  33;  Bonithon  v.  Hockmore,  1  Vern.  316; 
Langstaffe  v.  Fenwick,  10  Ves.  405;  French  v.  Barron,  2  Atk.  120;  Carew 
V.  Johnston,  2  Sch.  &  Lef.  301 ;  Arnold  v.  Garner,  2  Phil.  231 ;  Matthison 
V.  Clarke,  3  Drew.  3;  Barrett  v.  Hartley,  12  Jur.  426;  L.  R.  2  Eq.  789; 
In  re  Orinsby,  1  B.  &  B.  189;  Anon.  10  Ves.  103;  Re  Walker,  2  Phil. 
630;  Re  Westbrooke,  2  Phil.  631;  York,  &c.,  Railw.  v.  Hudson,  16  Beav. 
485  ;  Burden  v.  Burden,  1  V.  &  B.  170 ;  Stocken  v.  Dawson,  6  Beav.  371 ; 
Kirkman  v.  Booth,  11  Beav.  273. 

*  Ibid. ;  New  v.  Jones,  1  Hall  &  Tw.  632 ;  Broughton  v.  Broughton,  2 
Sm.  &  G.  422 ;  5  De  G.,  M.  &  G.  160;  Gomley  v.  Wood,  3  J.  &  Lat.  702; 
9  Ir.  Eq.  418;  Lincoln  v.  Winsor,  9  Hare,  158;  Bainbrigge  v.  Blair,  8 
Beav.  588;  Todd  v.  Wilson,  9  Beav.  486 ;  Lyon  v.  Baker,  5  De  G.  &  Sra. 
622 ;  Collins  v.  Carey,  2  Beav.  129 ;  Christophers  v.  White,  10  Beav.  523 ; 
Selatter  v.  Cottam,  3  Jur.  (n.  s.)  630;  Matthison  v.  Clarke,  3  Drew.  3; 
Li  re  Taylor,  18  Beav.  165. 

3  Barrett  v.  Hartley,  L.  R.  2  Eq.  789. 

*  Chambers  v.  Goldwin,  5  Ves.  834;  9  Ves.  254,  257,  267,  273;  Denton 
V.  Davy,  1  Moore  P.  C.  C.  15  ;  Forrest  v.  Elwes,  2  Mer.  68;  Hinchel  v.  Daly, 
1  Moore  P.  C.  C.  51 ;  Grant  v.  Campbell,  1  Moore  P.  C.  C.  43 ;  Leith  w. 
Irwin,  1  M.  &  K.  277 ;  Chetham  v.  Audly,  4  Ves.  72 ;  Matthews  v.  Bag- 
shaw,  14  Beav.  123;  Campbell  v.  Campbell,  13  Sim.  168;  2  Y.  &  Col.  Ch. 
607 ;  Freeman  v.  Fairlee,  3  Mer.  24,  28. 


§§  904-907.]      EXPENSES  ARE  ALLOWED.  537 

§  906.  Even  where  trustees  are  directed  to  carry  on  the  tes- 
tator's business,  they  can  have  no  compensation  for  their  time 
and  trouble,  unless  there  is  a  special  provision  in  the  will  for 
their  payment.  The  reason  is  that  trustees  can  make  no  profit.^ 
But  a  trustee  under  a  constructive  trust,  who  carries  on  busi- 
ness with  another's  property  in  such  manner  that  he  is  com- 
pelled to  account  for  the  profits,  may  1)0  allowed  a  compensation 
for  his  time  and  trouble,  and  for  his  skill  in  conducting  the 
business.^ 

§  907.  The  expenses  of  a  trustee  in  the  execution  of  the  trust 
are  a  lien  upon  the  estate,  and  he  will  not  be  compelled  to  part 
with  the  property  until  his  disbursements  are  repaid.^  The 
agent  of  the  trustee  is  accountable  to  his  principal  only,  and 
not  to  the  cestui  que  trust  ;^  therefore  an  agent  has  no  lien  upon 
the  trust  estate.^  But  an  attorney  who  has  collected  trust  funds 
for  a  trustee  may  set  off  his  costs  ;  ^  and  where  there  is  a  par- 
ticular direction  to  the  trustees  to  employ  a  particular  person 
in  a  })articular  capacity,  such  person  will  have  a  lien  on  the 
fund,'     But  a  mere  recommendation  to  the  trustees  to  employ 

'  Stoiken  v.  Dawson,  6  Beav.  371 ;  Biirdcm  v.  Burden,  1  V.  &  B.  170; 
Brocksopp  V.  Barnes,  o  Mad.  90;  Marshall  v.  Ilolloway,  2  Swans.  432; 
Forster  v.  Ridley,  4  N.  R.  417. 

^  Brown  v.  De  Tastet,  Jac.  281;  Crawshaw  v.  Collins,  15  Ves.  225: 
Wedderljurn  v.  Wedderburn,  22  Beav.  84;  Brown  v.  Litton,  1  P.  Wms. 
140 ;  10  Mod.  20. 

3  Ex  parte  James,  1  D.  &  C.  272  ;  Hill  v.  Magan,  2  Moll.  4G0;  Norwich 
Yarn  Co.  22  Beav.  143;  Ex  parte  Cliii)pendale,  4  De  G.,  M.  &  G.  19; 
Trott  V.  Dawson,  1  P.  Wms.  780;  Bro.  P.  C.  2<Ji;;  Morison  v.  Morison,  7 
De  G.,  M.  &  G.  226. 

*  Myler  v.  Fitzpatriok,  G  Mad.  oGO  ;  AttV-Gen.  v.  Chesterfield,  18  Beav. 
596  ;  Langford  v.  Mahoney,  2  Conn.  &  Laws.  317  ;  Lockwood  v.  Abdy,  14 
Sim.  441  ;  Kean  v.  Robarts,  4  Mad.  350. 

*  Warrall  v.  Harford,  8  Ves.  4  ;  Hall  v.  Lavcr,  1  Hare,  571  ;  Iloriot's 
Hospital  V.  Ross,  12  CI.  &  Fin.  507  ;  Francis  v.  Francis,  5  De  G.,  M.  &  G. 
108  ;  lie  Sadd,  34  Beav.  G50. 

«  Re  Sadd,  34  Beav.  650. 

^  Williams  v.  Corbett,  8  Sim.  349  ;  Hibbert  v.  Hibbert,  3  Mer.  C81 ; 
Cousett  V.  Bell,  1  Y.  &  Col.  Ch.  5G9. 


538  ALLOWANCES,    ETC.,   TO    TRUSTEES.        [CHAP.  XXXI. 

some  person,  will  not  give  the  person  employed  a  lien  on  the 
estate.^  The  trustee  of  a  void  deed  cannot  claim  a  lien  upon 
the  estate  for  his  expenses  against  those  who  establish  the 
fraudulent  or  invalid  character  of  the  deed,^  though  he  may  be 
allowed  for  improvements  ;  ^  nor  can  a  trustee  have  a  lien  for 
expenses  incurred  beyond  the  scope  of  his  authority.*  The 
trustee's  lien  cannot  be  allowed  to  control  the  estate  in  such 
manner  as  to  destroy  the  trust ;  but  no  conveyance  will  be 
ordered  or  allowed  until  he  is  repaid.^  Although  agents  of 
trustees  have  no  lien  upon  the  trust  estate,  and  are  not  respon- 
sible to  the  cestui  que  trust  as  before  stated,  yet  if  they  mix 
themselves  up  with  a  breach  of  trust,  and  by  an  abuse  of  their 
powers  as  simple  agents  obtain  possession  of  the  trust  property, 
the  cestui  que  trust  may  proceed  against  them  as  trustees  de  so7i 
tort  or  constructive  trustees.^  If  several  estates  are  subject  to 
the  same  trusts,  the  proceeds  of  any  one  of  the  estates  may  be 
applied  by  the  trustee  to  the  payment  of  his  expenses ;  but  if 
several  estates  are  subject  to  diiferent  trusts,  in  the  hands  of 
the  same  trustee,  each  estate  must  bear  its  own  expenses." 

§  908.  Where  a  fund  was  created  for  the  payment  of  debts  and 
funeral  and  testamentary  expenses^  it  was  held  that  administra- 
tion expenses  were  not  embraced,  and  could  not  be  paid  from 

>  Shaw  V.  Lawless,  1  LI.  &  G.  t.  Sugd.  154  ;  1  Dr.  &  W.  512  ;  5  CI.  & 
Fin.  129  ;  LI.  &  G.  t.  Plunk.  559  ;  Finden  v.  Stephens,  2  Phil.  U2  ;  Knott 
V.  Cottee,  2  Phil.  192. 

-  Smith  V.  Dresser,  L.  R.  1  Eq.  G51. 

8  Woods  V.  Axton,  W.  N.  207. 

*  Leedhani  v.  Chawner,  1  K.  &  J.  458. 

*  Darke  v.  Williamson,  25  Beav.  622. 

«  Myler  v.  Fitzpatrick,  6  Mad.  360  ;  Pollard  v.  Downes,  1  Eq.  Ca.  Ab. 
6  ;  Fyler  v.  Fyler,  3  Beav.  550  ;  Hardy  v.  Caley,  33  Beav.  365;  Ex  parte 
Woodin,  3  Mont.,  D.  &  D.  399  ;  Alleyne  v.  Darcey,  4  Ir.  Eq.  199  ;  Pannell 
V.  Hurley,  2  Coll.  241  ;  Portlock  v.  Gardner,  1  Hare,  166  ;  Bodenham  v. 
Hoskyns,  2  De  G.,  M.  &  G.  903;  Att'y-Gen.  v.  Leicester,  7  Beav.  176; 
Morgan  v.  Stephens,  3  Gif.  226. 

''  Price  V.  Loaden,  21  Beav.  508. 


§§  907-909.]  EXPENSES    ARE    ALLOWED.  539 

that  fund.^  There  is,  however,  one  case  to  the  contrary.-  But 
where  the  trusts  were  for  the  payment  of  "  debts,  testamentary, 
and  other  expenses  and  legacies  ;  "  ^  or  to  pay  "  funeral,  testa- 
mentary, and  legal  expenses  ;  "*  or  for  the  payment  of  "  debts, 
funeral  expenses,  and  the  costs  and  charges  of  proving  and 
attending  the  execution  of  the  will  and  the  several  trusts 
therein  named,"  ^  it  was  held  that  Uie  words  were  broad  enough 
to  embrace  the  payment  of  the  costs  of  the  administration  of 
the  trusts,  and  that  such  charges  must  be  paid  out  of  the  fund 
so  created.  Where  a  testator  bequeathed  a  leasehold  estate  and 
all  his  personal  property  to  his  wife,  and  devised  his  real  estate 
to  be  sold,  and  the  proceeds  applied  to  the  payment  of  his 
funeral  and  testamentary  expenses  and  debts,  and  the  residue 
invested,  it  was  held  that  the  funeral  and  testamentary  ex- 
penses were  thrown  upon  the  real  estate  in  exoneration  of  the 
personal,  but  that  the  costs  of  taking  the  opinion  of  the  court 
upon  a  special  case  were  not  testamentary  expenses  within  the 
meaning  of  the  will,  but  fell  upon  the  personalty,  which  was 
specifically  devised  to  the  wife.*^  So  a  trust  created  by  will  in 
both  real  and  personal  estate,  to  pay  out  of  the  personal  the 
ex})enses  of  probate  and  the  execution  of  the  trusts,  does  not 
authorize  the  trustees  to  pay  out  of  the  personal  any  other  ex- 
penses than  executors  would  be  authorized  to  pay  in  that  char- 
acter, and  the  trustees  cannot  discharge  the  expenses  of  the 
trust  of  the  real  estate  out  of  the  personal." 

§  909.  If  the  trust  fund  is  insufficient  for  the  reimbursement 
of  the  trustee,  he  may  call  upon  the  cestui  que  trust  in  whose 

'  Brown  v.  Groombridge,  4  Mad.  495;  Stringer  v.  Harper,  26  Beav. 
685;  Linley  v.  Taylor,  1  Gif.  69;  Webb  v.  Do  Beauvoisin,  3  Beav.  573; 
Gilbertson  v.  Gilbertson,  34  Beav.  354. 

«  Wilson  V.  Ileaton,  11  Beav.  492. 

^  Webb  V.  De  Beauvoisin,  31  Beav.  573. 

*  Coventry  v.  Coventry,  2  Dr.  &  Sm.  470. 

6  Alsop  V.  Bell,  24  Beav.  451,  469. 

'  Gilbertson  v.  Gilbertson,  34  Beav.  354. 

'  Brougham  v.  Paulett,  19  Beav.  119 ;  Saunders  v.  ^lillcr,  25  Beav.  154. 


540  ALLOWANCES,    ETC.,   TO    TRUSTEES.        [CHAP.  XXXI. 

behalf  and  at  whose  request  he  acted,  and  recover  of  him  per- 
sonally reasonable  compensation  for  the  time  and  trouble  and 
money  expended.^  So  trustees  may  call  upon  the  cestui  que 
trust  for  indemnity,  before  proceeding  to  incur  expenses  and 
liabilities.^  But  to  enable  trustees  to  enforce  their  claim  for 
expenses  against  a  cestui  que  trust,  they  must  have  proceeded 
strictly  within  the  limits  of  their  power,  unless  they  have  the 
express  or  implied  promise  of  the  cestui  que  trust  to  indemnify 
them.^ 

§  910.  Trustees  have  an  inherent  equitable  right  to  be  reim- 
•bursed  all  expenses  which  they  reasonably  and  properly  incur 
in  the  execution  of  the  trust,  and  it  is  immaterial  that  there  are 
no  provisions  for  such  expenses  in  the  instrument  of  trust.  If 
a  person  undertakes  an  office  for  another  in  relation  to  prop- 
erty, he  has  a  natural  right  to  be  reimbursed  all  the  money 
necessarily  expended  in  the  performance  of  the  duty.'^  Thus  a 
trustee  will  be  reimbursed  all  his  necessary  travelling  expenses,^ 

»  BaLsh  V.  Hybam,  2  P.  Wms.  453;  Ex  imrte  Chippendale,  4  De  G., 
M.  &  G.  19,  54 ;  Phene  v.  Gillam,  5  Hare,  9,  13. 

2  Ibid. 

^  Leedham  v.  Chawner,  4  K.  &  J.  458 ;  CoUinson  v.  Lister,  20  Beav. 
368. 

*  Worrall  v.  Harford,  8  Ves.  8;  AttV-Gen.  v.  Norwicli,  2  M.  &  Cr.  406, 
424;  Rex  v.  Inliab.  of  Essex,  4  T.  R.  591 ;  Rex  v.  Com'rs,  1  B.  &  Ad.  232; 
Brocksopp  V.  Barnes,  5  Mad.  90;  How  v.  Godfrey,  t.  Finch,  361 ;  Heriot's 
Hospital  V.  Ross,  12  CI.  &  Fin.  612;  CafTrey  v.  Darby,  6  Ves.  497;  i?e 
Ormsby,  1  B.  &  B.  190;  Godfreys.  Watson,  3  Atk.  618;  Hide  v.  Hey- 
wood,  2  Atk.  126;  Dawson  v.  Clarke,  18  Ves.  254;  Morison  v.  Morison,  7 
De  G.,  M.  &  G.  214;  Morton  v.  Barrett,  22  Me.  257;  Pennell's  App.  2 
Barr,  216«;  Morton  v.  Adams,  1  Strob.  Eq.  76  ;  Miller  v.  Beverleys,  4  Hen. 
&  M.  415  ;  Ames  v.  Downing,  1  Bradf.  Sur.  331  ;  Myers  v.  Myers,  2  Mc- 
Cord,  Ch.  214;  Miles  v.  Bacon,  4  J.  J.  Marsh.  457;  Jones  v.  Dawson, 
19  Ala.  672;  Hatton  v.  Weems,  12  Gill  &  J.  83;  Perkins  v.  Kershaw, 
1  Hill,  Eq.  350;  Egbert  v.  Brooks,  3  Harring.  110;  Love  v.  Morris,  13 
Ga.  165. 

^  Ex  parte  Lovegrove,  3  D.  &  C.  763;  Malcolm  v.  O'Callaghan,  3  M.  & 
C.  62 ;  Bridge  v.  Brown,  2  Y.  &  Col.  Ch.  181  ;  Ex  parte  Bray,  1  Rose, 
144 ;  Ex  2)arte  Elsee,  1  Mont.  1 ;  Burr  v.  McEwen,  Baldw.  C.  C.  154 ; 
Towle  V.  Mack,  2  Vt.  19. 


§§  909-911.]  ALLOWANCES   FOR   EXPENSES.  541 

and  all  reasonable  fees  paid  for  legal  advice  in  the  discharge  of 
his  duties, 1  And  this  rule  will  be  applied,  although  the  trust 
may  subsequently  be  declared  void,^  if  the  trustees  were  without 
blame  in  the  matter.  So  trustees  will  be  allowed. all  the  ex- 
penses of  litigation  concerning  the  fund,  and  all  costs  which 
they  are  ordered  to  pay  to  strangers,  if  the  litigation  was  forced 
upon  them,  or  was  necessary  for  the  protection  of  the  estate  ;  ^ 
but  if  a  trustee  is  deprived  of  his  costs,  or  ordered  to  pay  costs 
by  reason  of  his  own  misconduct,  or  if  the  suit  was  improperly 
instituted  by  him,  he  cannot  be  allowed  for  such  disbursements, 
but  he  must  bear  them  personally  as  a  penalty  for  his  miscon- 
duct.* Nor  can  a  trustee  be  allowed  liis  expenses  in  defending 
himself  upon  an  inquisition  of  insanity.'^  Allowances  for  legal 
expenses.and  costs  are  always  within  the  discretion  of  the  court ; 
and  such  claims  can  be  modified  and  reduced,  if  in  the  judgment 
of  the  court  they  arc  unreasonable.^  Interest  upon  such  pay- 
ments will  not  be  allowed  to  a  trustee,  although  he  had  no  trust 
money  in  his  hands  at  the  time  of  the  payment.' 

§  911.  A  trustee  ought  to  keep  a  regular  account  of  his  ex- 
penses, and  if  he  does  not  do  so,  every  intendment  of  fact  will 
be  made  against  him,^  and  the  lowest  estimate  put  upon  his 

'  Gary,  U;  IMcElhenny's  App.  46  Pcnn.  St.  347  ;  Wilson's  App.  41  Pciin. 
St.  94;  Brady  r.  Dilley,  27  Md.  570;  McNamara  v.  Jones,  Dick.  5S7;  Fearns 
V.  Young,  10  Vcs.  184  ;  Burge  v.  Brutton,  2  Hare,  37o  ;  Johnson  v.  Telford, 
3  Russ.  477;  Poole  v.  Pass,  1  Beav.  604;  Brady  v.  Dilley,  27  Md.  570. 
But  he  cannot  incur  unnecessary  counsel  fees,  llolcomb  v.  Holcomb,  2 
Beav.  415;  Beatty  v.  Clark,  20  Cal.  11. 

2  Stewart  v.  McMinn,  5  W.  &  S.  100;  Re  Wilson,  4  Barr,  430;  liawley 
V.  James,  16  Wend.  61. 

'  See  chapter  on  Costs. 

*  Cadrey  v.  Darby,  6  Ves.  497  ;  Peers  v.  Ceeley,  15  Beav.  209  ;  Leedham 
V.  Chawner,  4  K.  &  J.  458. 

*  Buckhara  v.  Smith,  55  Penn.  St.  335. 

*  Johnson  v.  Telford,  3  Russ.  477 ;  Langford  v.  Mahony,  5  Ir.  E(i. 
676. 

'  Gordon  v.  Trail,  8  Price,  416. 

*  J^x  parte  Cassell,  5  Watts,  442 ;  Green  v.  Winter,  1  John.  Ch.  27. 


542  ALLOWANCES,   ETC.,   TO   TRUSTEES.        [CHAP.  XXXI. 

charges  for  expenses.^  Thus  in  Hethersell  v.  Hales,  the  trus- 
tee made  a  charge  of  .£2,500  for  expenses,  having  kept  no  ac- 
count ;  the  court  upon  inquiry  found  that  he  had  expended 
large  sums,  which  might  well  amount  to  <£ 2,500,  but,  as  there 
was  no  regular  account,  it  allowed  only  X2,000.2  The  court 
may  reject  the  whole  sum  claimed  as  expenses  where  no  ac- 
count has  been  kept,  and  allow  only  such  sums  as  are  clearly 
proved  by  competent  evidence,^  and  appear  reasonable. 

§  912.  A  trustee  may  employ  necessary  assistants  in  execut- 
ing the  trust  and  pay  them  ;  thus  he  may  employ  agents,  col- 
lectors, accountants,  and  other  persons  properly  employed  in 
similar  affairs.*  Even  where  a  sum  of  money  was  given  to  trus- 
tees for  their  care  and  trouble,  it  was  held  that  they  might  em- 
ploy necessary  collectors  and  agents,  and  pay  for  their  services 
from  the  trust  fund,  and  that  the  gift  in  the  will  was  for  their 
own  care  and  trouble  in  overseeing  and  conducting  the  trust.^ 
So  the  ordinary  brokerage  fees  will  be  allowed  for  transferring 
stocks,^  where  a  transfer  is  proper.'^  The  concurrence  of  a 
cotrustee  is  not  necessary  for  the  incurring  of  expenses,  if  the 
expenses  are  proper  in  themselves ;  ^  but  if  they  are  unneces- 

1  McDowell  V.  Caldwell,  2  McCord,  Cb.  42. 

=*  2  Ch.  R.  158. 

3  Miller  v.  Whittier,  36  Me.  577 ;  Wistar's  App.  54  Penn.  St.  54. 

*  Wilkinson  v.  Wilkinson,  2  S.  &  S.  237 ;  Henderson  v.  Mclver,  3  Mad. 
275;  Davis  v.  Dendy,  3  Mad.  170;  Hopkinson  v.  Roe,  1  Beav.  180;  Turner 
V.  Coruey,  5  Beav.  515;  Weiss  v.  Dill,  3  M.  &  K.  26 ;  Kennedy's  App.  4 
Barr,  150.  In  England  the  court  will  not  allow  more  than  two  and  one-half 
per  cent  to  be  paid  to  a  collector.  Weiss  v.  Dill,  3  M.  «&  K.  26;  Stackpole 
V.  Stackpole,  4  Dow,  226.  Trustees  incur  personal  liabilities  toward  thii-d 
persons  for  services  upon  the  trust  estate,  and  actions  at  law  may  be  main- 
tained against  them  for  such  services;  but  third  persons  cannot  maintain  bills 
in  equity  against  the  trustees  nor  against  the  trust  estate  for  such  services. 
Wade  V.  Pope,  44  Ala.  690. 

"  Wilkinson  v.  Wilkinson,  2  S.  &  S.  237 ;  Webb  v.  Shaftesbury,  7  Ves. 
480;  Fountaine  v.  Pellet,  1  Ves.  Jr.  337. 

®  Jones  V.  Powell,  6  Beav.  485. 

■^  Weiss  I'.  Dill,  3  M.  &  K.  27.     See  Hopkinson  v.  Roe,  1  Beav.  183. 

s  Miller  v.  Beverleys,  4  Hen.  &  Munf.  415. 


§§  911-914.]         ALLOWANCES    FOR   DISBURSEMENTS.  543 

sarj,  and  arc  incurred  against  the  protest  of  the  cestui  que  tnist, 
they  will  not  be  allowed  by  the  court.^ 

§  913.  The  disbursements  that  will  be  allowed  to  a  trustee 
will  depend  very  much  upon  the  character  of  the  trust  and  the 
directions  given  in  the  instrument  of  trust.  If  he  has  a  power 
of  sale,  he  will  be  allowed  all  the  expenses  of  a  sale.^  'If  he 
has  power  of  managing  the  estate,  he  w'ill  be  entitled  to  all  the 
expenses  of  keeping  up  the  estate,  such  as  hire  of  servants, 
salaries,  taxes,  cost  of  repairing,  rebuilding  farm-houses,  ma- 
nuring, draining,  fencing,  and  other  expenses  of  that  kind.^ 
If,  however,  there  is  a  tenant  for  life  entitled  to  the  possession 
of  the  estate,  the  trustee  can  expend  no  part  of  the  general 
fund  upon  the  estate,  unless  he  is  specially  directed  to  do 
so.*  But  if  the  trustee  is  to  reside  upon  the  estate,  he  will  be 
allowed  all  the  ordinary  expenses  of  living.^  He  cannot,  how- 
ever, be  allowed  for  a  park-keeper,  or  for ,  keeping  up  a  mere 
pleasure  establishment,  nor  for  pulling  down  and  rebuilding 
houses.^ 

§  914.  If  a  trustee  uses  proper  care  in  the  custody  of  the 
trust  property,  and  it  is  stolen  from  him,  he  will  not  be  respon- 
sible ;  but  the  amount  so  lost  may  be  allowed  in  his  accounts.' 
So  if  the  funds  are  properly  deposited  in  a  bank  or  with  a 
banker,  and  the  money  is  lost  by  the  failure  of  the  bank,  the 

'  Berryhiirs  App.  3  Penn.  St.  245. 

*  Crump  V.  Baker,  18  Ves.  285. 

'  Fountaiiie  v.  Pellet,  1  Ves.  Jr.  337 ;  Bridge  v.  Brown,  2  N.  C.  C.  181 ; 
Webb  V.  Shaftesbury,  7  Ves.  480;  Bowes  v.  Stratbmore,  8  Jur.  92. 

*  Ibid. ;  Bostock  v.  Blakeney,  2  Bro.  Cli.  t).'j3  ;  Hibbert  v.  Cook,  1  S.  &  S. 
552  ;  Nairn  v.  Majoribanks,  3  Russ.  582  ;  Caldicott  v.  Brown,  2  Hare,  144  ; 
Jones  V.  Dawson,  19  Ala.  673. 

*  Fountaine  v.  Pellet,  1  Ves.  Jr.  337. 

*  Ibid.;  Webb  v.  Shaftesbury,  7  Ves.  480;  Bridge  v.  Brown,  2  N.  C.  C. 
191. 

'  Morley  v.  Morley,  2  Ch.  Ca.  2 ;  Knight  v.  Plymouth,  3  Atk.  180 ;  1 
Dick.  120;  Jones  v.  Lewis,  2  Ves.  240;  a7ite,  §  441;  Nell's  App.  57  Penn. 
St.  91 ;  Campbell  v.  Miller,  38  Ga.  304. 


544  ALLOWANCES,   ETC.,   TO    TRUSTEES.        [CHAP.  XXXI. 

trustee  may  be  allowed  such  loss  in  his  accounts. ^  If  the  set- 
tlor directs  the  employment  of  a  particular  person,  and  any 
part  of  the  trust  fund  is  lost  by  him  without  the  fault  of  the 
trustee,  such  sum  will  be  allowed.^  So  if  investments  are  made 
according  to  the  directions  of  the  donor  or  settlor,  or  accord- 
ing to  law  in  good  faith,  trustees  will  be  allowed  for  any  loss 
which  may  happen  from  such  investments  if  they  use  due  dili- 
gence in  protecting  such  investments  from  danger.^  In  some 
cases,  it  has  been  held  that  a  trustee  receiving  a  stipulated 
commission  or  compensation  is  liable,  upon  the  same  principles 
that  a  bailee  for  hire  is  liable.*  But  the  more  common  rule 
is,  that  trustees  are  liable  only  for  good  faith  and  common 
prudence,  and  that  if  a  loss  happens  to  the  trust  fund  in  rela- 
tion to  which  they  have  exhibited  this  care  and  prudence,  they 
may  be  allowed  for  the  loss  in  their  accounts.^  A  loss  that 
happens  through  the  negligence  of  the  trustee  must  be  borne 
by  him.'^  But  where  a  trustee  properly  employed  a  servant  to 
fell  trees  upon  the  trust  estate,  and  the  servant  carelessly  felled 
a  tree  upon  a  third  person,  who  recovered  a  judgment  against 
the  trustee  for  the  injury,  the  amount  was  allowed  to  the 
trustee  in  his  account.^  The  loss  may  be  proved  by  the  affida- 
vit of  the  trustee.^ 

'  Ibid. ;  Routh  v.  Howell,  3  Ves.  564 ;  Adams  v.  Claxton,  6  Ves.  626 ; 
Freeme  v.  Woods,  1  Taml.  172;  Massey  v.  Banner,  4  Mad.  416;  Belcher  v. 
Parsons,  Amb.  219;  Clough  v.  Bond,  3  M.  &  Cr.  290. 

*  Kilbee  V.  Sneyd,  2  Moll.  199 ;  Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 

3  Watson  V.  Stone,  40  Ala.  451 ;  Dockey  v.  McDonald,  40  Ala.  476 ; 
Neilson  v.  Cook,  40  Ala.  498.  *  Eo:  parte  Cassell,  3  Watts,  442. 

^  Cbaplin  v.  Givens,  Rice,  Eq.  132;  Mikel  v.  Mikel,  5  Rich.  Eq.  442; 
Bryant  v.  Russell,  23  Pick.  546  ;  Xyce's  Est.  5  AV.  &  S.  254;  Twaddell's  App. 

5  Barr,  15;  Sollee  v.  Croft,  7  Rice,  Eq.  46;  Gray  v.  Lynch,  8  Gill,  403. 
Nt'ff's  App.  57  Penn.  St.  91  ;  King  v.  King,  37  Ga.  205;  CampbL41  v. 
Miller,  3  Ga.  304. 

6  Litchfield  v.  White,  3  Seld.  444. 

7  Benett  v.  Wyndham,  4  De  G.,  F.  &  J.  259 ;  Duncan  v.  Findlater,  6  CI. 

6  Fin.  894;  Heriot's  Hosp.  v.  Ross,  12  CI.  &  Fin.  517;  Mersey  Docks 
Trustees  v.  Gibbs,  11  H.  L.  Cas.  686;  L.  R.  1  H.  L.  93. 

8  Morley  v.  Morley,  2  Ch.  Ca.  2 ;  Furman  v.  Coe,  1  Caine's  Ca.  in 
Er.  96. 


§§  914,  915.]       ALLOWANCES   FOR   DISBURSEMENTS.  545 

§  915.  What  the  court  will  allow  iipou  suit,  may  be  done  by 
the  trustee  without  suit.^  Thus  any  disbursements,  which  the 
court  would  order  the  trustee  to  make,  will  be  allowed  to  the 
trustee,  if  he  makes  them  without  an  order  ;  and  expenditures 
for  the  good  of  the  estate  may  be  allowed  to  him :  as,  where 
he  buys  in  a  burdensome  lease  ;  ^  or  pays  off  an  incumbrance,^ 
or  buys  in  an  outstanding  title  for  the  benefit  of  the  estate,^ 
or  makes  any  other  advances,  for  the  benefit  of  the  trust  estate.^ 
So  trustees  may  expend  moneys  for  the  support  of  an  infant,  if 
the  court  shall  subsequently  approve  of  the  expenditure  ;  ^  and 
he  may  disburse  money  for  the  protection  of  an  adult  cestui 
que  trust,  where  he  is  insane  or  otherwise  incompetent  to  take 
care  of  himself;^  and  in  some  cases  he  is  bound  to  do  so.^ 
Advances  to  the  cestui  que  trust  on  the  faith  of  the  estate 
may  be  allowed  to  the  trustee  as  against  creditors.^  But  the 
trustee  must  show  that  articles  furnished  were  of  the  value 
charged,  and  that  he  made  no  profit  from  the  transactions. ^^ 

1  Balsh  V.  Higham,  2  P.  Wms.  4o3  ;  Gray  v.  Lynch,  8  Gill,  403  ;  Hutton 
V.  AVeems,  12  G.  &  J.  83;  Gibson  i;.  Bott,  7  Ves.  150;  Lee  v.  Brown,  4 
Ves.  369 ;  Bath  v.  Bradford,  2  Ves.  590 ;  Cooks  v.  Parsons,  Pr.  Ch.  185 ; 
Inwood  V.  Twyne,  2  Ed.  153;  Hutcheson  v.  Hammond,  3  Bro.  Ch.  145; 
Terry  v.  Terry,  Gilb.  11 ;  Shaw  v.  Borrer,  1  Keen,  576 ;  Co.  Lit.  171  a. 

2  Fountaine  v.  Pellett,  1  Ves.  Jr.  343. 

3  Murray  v.  De  Rottenham,  6  John.  Ch.  62 ;  Freeman  v,  Tompkins,  1 
Strob.  53 ;  Pennell's  App.  2  Barr,  216 ;  Mathews  v.  Dragaud,  3  Des. 
25. 

*  King  V.  Cushman,  41  111.  31. 

5  Altimus  V.  Elliott,  2  Barr.  62. 

^  Barlow  v.  Grant,  1  Vern.  255 ;  Franklin  v.  Greene,  2  Vern.  137 ; 
Sisson  V.  Shaw,  9  Ves.  285  ;  Prince  v.  Hine,  26  Beav.  634.  See  Lewin, 
419. 

'  Nelson  v.  Duncombe,  9  Bcav.  211 ;  Chester  v.  RoUe,  4  De  G.,  M.  & 
G.  798;  Leonard  v.  Powell,  41  Ga.  598. 

*  Leonard  v.  Powell,  41  Ga.  598. 

9  Iredell  v.  Langston,  1  Dev.  Eq.  392;  Balsh  v.  Illgham,  2  P.  Wms. 
455;  Att>Gen.  v.  Norwich.  2  :\I.  &  C.  424;  AttV-Gen.  v.  Pearson,  2  Coll. 
581 ;  Quarrcll  v.  Beckford,  1  Mad.  282  ;  Sandon  v.  Hooper,  6  Beav.  246; 
Bright  V.  North,  2  Phil.  216. 

'"  Cleveland  v.  Pollard,  37  Ala.  5.J6 ;  1  Ala.  (s.  c.)  481. 

VOL.  II.  35 


646  ALLOWANCES,   ETC.,   TO   TRUSTEES.        [CHAP.  XXXI. 

§  916.  The  English  rule  as  stated  in  Robinson  v.  Pett,^  that 
trustees  can  have  no  compensation  for  time  and  trouble,  was 
cited  with  approbation  by  Chancellor  Kent  in  two  early  cases, 
and  enforced  with  his  usual  clearness  and  vigor  ;  ^  And  in  the 
State  of  Delaware  that  rule  is  applied  in  all  cases.^  And 
perhaps  the  same  rule  prevails  in  Ohio  and  Illinois. 

§  917.  But  this  is  the  extent  of  the  application  of  the  rule 
in  the  United  States.  It  has  been  said,  that  "  the  state  of  our 
country  and  the  habits  of  our  people  are  so  different  as  to  have 
induced  the  legislatures  of  nearly  all  the  States  to  introduce 
provisions  by  statute  for  competent  remuneration  to  those 
to  whom  the  law  commits  the  care  and  charge  of  the  estate  of 
infants  and  deceased  persons,  and  the  courts  make  a  reasonable 
allowance  to  receivers  appointed  by  them,  beside  reimbursing 
their  expenses  ;  .  .  .  and  the  equity  of  the  statute  is  by  con- 
struction generally  extended  to  conventional  trustees  where  the 
agreement  is  silent."*  Mr.  Story  said,  that  "  the  policy  of  the 
law  ought  to  be  such  as  to  induce  honorable  men,  without  a 
sacrifice  of  their  private  interests,  to  accept  the  office,  and  to 
take  away  the  temptation  to  abuse  the  trust  for  mere  selfish 
purposes,  as  the  only  indemnity  for  services  of  an  important 
and  anxious  character."  ^  These  views  have  received  the.  sanc- 
tion of  the  courts  and  the  legislatures  of  nearly  all  the  States ; 
and  trustees  are  now  entitled  to  compensation  for  their  time  and 
trouble,  either  in  the  form  of  a  commission  upon  the  property 
under  their  care,  or  of  a  gross  sum  allowed  to  them  as  compen- 
sation for  their  services.^ 

1  Robinson  v.  Pett,  3  P.  Wms.  132 ;  2  Eq.  Ca.  Ab.  454. 

*  Green  v.  Winter,  1  John.  Ch.  37;  Manning  v.  Manning,  1  John.  Ch. 
634. 

^  Egbert  v.  Brooks,  3  Harring.  112;  State  v.  Piatt,  4  Harring.  154. 
■*  Boyd  V.  Hawkins,  2  Dev.  Eq.  334. 

*  2  Story,  Eq.  Jur.  §  1268,  n. 

*  Barney  v.  Saunders,  16  How.  542 ;  Shirley  v.  Shattuck,  6  Cush. 
(Miss.)  26;  Robinson  v.  Pett,  2  Lead.  Ca.  Eq.  436,  473  (Amer.  notes); 
Clark  V.  Piatt,  30  Conn.  282. 


§§  916-918.]       COMPENSATION   IN    THE    UNITED    STATES.  547 

§  918.  The  general  principle  prevails  in  all  the  States  except 
Delaware,  and  perhaps  Ohio  and  Illinois,  that  trustees  are  to 
have  a  reasonable  compensation  for  their  time,  trouljle,  and 
skill  in  managing  the  fund  and  in  executing  the  trust,  although 
there  is  some  diversity  in  the  manner  of  determining  the 
amount.^     In  the  larger  number  of  States,  the  compensation 

'  In  Maine,  there  is  allowed  one  dollar  for  every  ten  miles'  travel  to  and 
from  court,  and  one  dollar  for  each  day's  attendance,  and  a  commission  at 
the  discretion  of  the  court,  not  exceedinp:  five  per  cent  on  the  amount  of 
the  personal  assets,  together  with  reasonable  sums  paid  for  professional  aid, 
regard  being  had  to  the  nature  and  difficulty  of  the  trust.  Rev.  Stat. 
1857,  c.  116,  §  16. 

In  New  Hampshire,  compensation  is  within  the  discretion  of  the  court, 
and  it  is  usually  made  up  from  the  expenses  of  attending  court,  a  per  diem 
allowance  at  court,  and  commissions  varying  from  two  to  five  per  cent. 
Wendell  i'.  French,  19  N.  H.  210;  Tiittle  v.  Robinson,  33  N.  H.  118. 
The  court  has  declined  to  allow  a  commission  upon  the  value  of  specific  arti- 
cles delivered  to  a  specific  legatee.  Gordon  v.  West,  8  N.  H.  44-1.  But  an 
executor  who,  bemg  an  attorney  at  law,  has  rendered  valuable  services 
to  the  estate  in  that  capacity,  has  been  held  to  be  entitled  to  adequate 
compensation  for  such  services.     Wendell  v.  French,  19  N.  H.  210. 

In  Vermont,  all  expenses  will  be  allowed,  and  such  fees  for  services  as 
the  law  provides.  Rev.  Stat.  c.  53,  §  12;  Hubbard  v.  Fisher,  25  Vt.  542. 
A  gross  sum  in  addition  to  expenses  has  been  allowed.  Evarts  i'.  Nason, 
11  Vt.  122. 

In  Massachusetts,  trustees  are  allowed  their  reasonable  expenses,  and 
such  compensation  as  the  courts  may  order.  Gen.  Stat.  c.  98,  §  10.  In 
Burrell  v.  Joy,  16  Mass.  229,  five  per  cent  upon  the  gross  amount  of 
property  coming  into  their  hands  was  allowed.  Denny  v.  Allen.  1  Pick. 
147;  Jenkins  r.  Eldridge,  3  Story,  225;  Longley  v.  Hall,  11  Pick.  124; 
Ellis  V.  Ellis,  12  Pick.  183;  Gibson  v.  Crehore,  5  Pick.  161.  The  amount 
is  within  the  discretion  of  the  court,  and  may  be  varied  to  meet  the  require- 
ments of  each  case.  Scudder  v,  Crocker,  1  Cush.  382 ;  Dixon  v.  Homer, 
2  Met.  422;  Blake  t?.  Pegram,  101  Mass.  692.  The  commission  charged 
by  brokers  for  the  change  of  investments  must  be  paid  out  of  the  income. 
Heard  v.  Eldredge,  1U9  Mass.  258. 

In  Coimecticut,  the  matter  of  compensation  is  wholly  within  the  discre- 
tion of  the  court:  Cantfield  v.  Bostwick,  21  Conn.  555;  Kendall  v.  New 
Eng.  Carpet  Co.  13  Conn.  392;  and  a  fair  compensation  will  be  allowed. 
Clark  V.  Piatt,  30  Conn.  282. 

In  New  York,  the  compensation  of  executors  and  guardians  is  established 
by  statute  at  five  per  cent  upon  the  first  one  thousand  dollars,  two  and  one 
half  per  cent  upon  the  next  nine  thousand  dollars,  and  one  per  cent  upon 


548  ALLOWANCES,    ETC.,   TO   TRUSTEES.        [CHAP.  XXXI. 

is  determined  by  a  percentage  or  commission  upon  the  trust 
fund,  and  this  commission  varies  somewhat  in  the  different 

all  above  those  amounts.  2  Rev.  Stat.  93;  see  vol.  6  Gen.  Stat.  N.  Y.; 
c.  362,  §  8,  Acts  of  1863  ;  and  c.  115  Acts  of  1866;  Matter  of  Rob- 
erts, 3  John.  Ch.  43;  and  see  3  John.  Ch.  630.  They  are  to  be  allowed 
all  their  reasonable  expenses  in  addition.  3  Rev.  Sts.  180  (ed.  1859); 
Dakin  v.  Demming,  6  Paige,  95.  These  provisions  are  extended  to  trus- 
tees. Roberts,  3  John.  Ch.  43 ;  Meacham  v.  Sterns,  9  Paige,  403 ;  Liv- 
ingston's Case,  9  Paige,  442 ;  Jewett  v.  Woodward,  1  Edw.  Ch.  199. 
Compensation  to  trustees  is  to  be  computed  upon  the  whole  property,  real 
and  personal.  De  Peyster's  Case,  4  Sandf.  Ch.  514;  Waggstaffe  ».  Low- 
erre,  23  Barb.  224.  These  commissions  to  trustees  include  all  allowances 
for  expenses.  Stevenson  v.  Maxwell,  2  Sandf.  Ch.  284;  Griffin  v.  Barney, 
2  Comst.  372;  Nichols  v.  McEwen,  21  Barb.  66.  If  a  deed  of  trust 
should  make  a  larger  provision  for  compensation,  it  will  not  be  allowed. 
Griffin  V.  Barney,  2  Comst.  372.  And  an  assignment  in  trust  for  creditors 
was  held  to  be  void,  for  the  reason  that  it  provided  for  the  expenses  of  the 
trustees  in  addition  to  their  commissions.  Nichols  v.  McEwen,  21  Barb. 
66.  But  if  a  trustee  undertakes  a  trust  from  motives  of  friendship  and 
kindness,  no  commissions  can  be  allowed.  Mason  v.  Rosevelt,  5  John.  Ch. 
634;  Wetniore  v.  Brown,  37  Barb.  133.  The  compensaticm  is  confined  to 
commissions,  and  it  cannot  be  allowed  as  a  gross  sum,  or  as  a  per  diem 
charge.  M'Whorter  v.  Benson,  Hopk.  28;  Vanderheyden  v.  Vanderhey- 
den,  2  Paige,  288 ;  Valentine  v.  Valentine,  3  Barb.  Ch.  438.  But  see 
Jewett  V.  Woodward,  1  Edw.  Ch.  199.  This  compensation  is  a  matter  of 
right  under  the  statutes,  and  not  of  discretion.  Vanderheyden  v.  Vander- 
heyden, 2  Paige,  288;  Rapalje  v.  Hall,  1  Sandf.  Ch.  406;  Meacham  v. 
Sterns,  9  Paige,  405;  Cairns  v.  Chaubert,  9  Paige,  161;  Morgan  i'.  Han- 
nas,  49  N.  Y.  667.  But  care  will  be  taken  not  to  allow  double  commis- 
sions when  the  estate  is  transferred  from  one  trustee  to  another.  Jones's 
Case,  4  Sandf.  Ch.  616  ;  Kellogg's  Case,  7  Paige,  267 ;  Hosack  v:  Rogers, 
9  Paige,  468;  Valentine  v.  Valentine,  3  Barb.  Ch.  438;  White  v.  Bullock, 
20  Barb.  99.  As  to  commissions  in  cases  of  constructive  trust,  see  Cow- 
ing V.  Howard,  46  Barb.  579;  Duffy  v.  Duncan,  32  Barb.  587;  Slocomb 
V.  Barry,  38  N.  Y.  46 ;  Ogden  v.  Murray,  39  N.  Y.  202.  The  compensa- 
tion of  receivers  appointed  by  the  courts  is  not  governed  by  these  rules, 
but  the  courts  may  determine  such  compensation  in  their  own  discretion. 
Gardiner  v.  Tyler,  2  N.  Y.  Dec.  247.  Nor  are  trusts  created  by  instruments 
between  the  parties  within  these  rules.  In  such  case,  the  court  will  deter- 
mine the  compensation  judicially.     In  re  Schell,  53  N.  Y.  263. 

In  New  Jersey,  previous  to  1855,  there  was  great  confusion  as  to  the 
compensation  of  executors,  trustees,  and  other  fiduciary  officers.  See 
Voorhees  v.  Stoothorf,  6  Hals.  149;  Jackson  v.  Jackson,  2  Green.  Ch.  113; 
Worbass  v.  Armstrong,  2  Stockt.  Ch.   263;  State  Bank  v.  Marsh,  Saxt. 


§  918.]  COMPENSATION    IN    THE   UNITED   STATES.  549 

States.  *In  some  States,  a  gross  sum  is  allowed  for  time  and 
troulile;  and  in  others,  a  j^er  diem  compensation  is  made  for 

296;  Matliis  v.  Mathis,  3  Harrison,  67;  Stevenson  v.  Phillips,  1  Zabr.  71; 
Lloyd  V.  Howe,  Spencer,  685.  The  statute  of  that  year  provided  that  the 
commissions  of  trustees,  over  and  above  their  necessary  expenses,  should 
not  exceed  seven  per  cent  upon  the  first  thousand  dollars,  four  per  cent  on 
the  next  four  thousand  dollars,  three  per  cent  on  the  next  five  thousand 
dollars,  and  two  per  cent  upon  all  sums  above  ten  thousand  dollars,  provided 
that  all  allowances  shall  not  exceed  one-fifth  of  the  estate.  Nixon's  Dig. 
562,  Act  of  1855,  §§  9,  10.  The  trustee  may  forfeit  his  compensation  by 
misconduct,  but  in  such  case  he  may  be  allowed  compensation  for  the  value 
to  the  estate  of  any  services  performed  by  him.  Blauvelt  v.  Ackerman,  23 
N.  J.  Eq.  495 ;  McKnight  v.  Walsh,  23  N.  J.  Eq.  136 ;  Lathrop  v.  Smalley, 
23  N.  J.  Eq.  192;  Moore  v.  Zabriskie,  3  Green,  51. 

In  Pennsylvania,  by  a  statute  June  14,  1836,  it  was  made  lawful  for  the 
court  to  allow  such  compensation  to  trustees  as  shall  be  just  and  reasonable. 
The  courts  had  always  allowed  compensation  under  an  act  passed  in  1713. 
Wilson  V.  Wilson,  3  IBinn.  560;  Anderson  v.  Neff,  11  S.  &  R.  218;  Ileck- 
ert's  App.  12  Harris,  486 ;  Prevost  v.  Gratz,  3  Wash.  C.  C.  434.  The 
courts  of  Pennsylvania  hold,  however,  that  compensation  is  a  matter  of  judi- 
cial and  equitable  discretion,  and  that  they  may  withhold  it  if  there  is  any 
misconduct  on  the  part  of  the  trustee.  Walker  v.  Walker,  9  Wall.  743; 
Hermstead's  App.  60  Penn.  St.  423;  Berryhill's  App.  35  Penn.  St.  245;  Ex 
parte  Cassel,  3  Watts,  443;  Robenett's  App.  38  Penn.  St.  112;  Swartswal- 
ter's  Acct.  4  Watts,  79 ;  Witman's  App.  4  Casey,  378 ;  Raybold  v.  Raybold,  8 
Harris,  308 ;  Stehman's  App.  5  Barr,  414 ;  Dyott's  Est.  2  W.  &  S.  566 ; 
Say  V.  Barnes,  4  S.  &  R.  116;  Aston's  Est.  4  Whart.  240;  Fournier  r. 
Ingraham,  7  W.  &  S.  31 ;  Drysdale's  App.  2  Harris,  537;  BelTs  Est.  2 
Pars.  Eq.  200;  McCahan's  App.  7  Barr,  59  ;  Norris's  App.  71  Penn  St.  106. 
This  rule  was  applied  to  deprive  an  attorney  of  his  commissions  where  he 
withheld  for  a  long  time  money  collected.  Bredin  i\  Kingland,  4  Watts, 
420.  But  a  trustee  will  not  be  deprived  of  his  commission  for  a  mistake  in 
judgment.  Meyer's  App.  62  Penn.  St.  109.  The  general  practice  is  to 
allow  compensation  by  commissions,  and  five  per  cent  is  the  ordinary  rule. 
Pusey  V.  Clemson,  9  S.  «&  R.  209;  Hemphill's  Est.  1  Pars.  Eq.  31  ;  Bird's 
Est.  2  Pars.  Eq.  171;  Pennell's  App.  2  Barr,  216.  But  the  amount  is 
under  the  control  and  discretion  of  the  court,  and  it  may  give  more  or  less 
as  circumstances  require.  Pusey  v.  Clemson,  9  S.  &  R.  209;  Mai-steller's 
Api>.  4  Watts,  268;  Harland's  Accts.  5  Rawle,  331;  Stephenson's  Est. 
4  Whart.  104;  Walker's  Est.  9  S.  &  R.  225;  Miller's  Est.  1  Ash.  335; 
Nathans  v.  Morris,  4  Whart.  389;  Slumk's  App.  2  Barr,  307 ;  Green's  Est. 
1  Ash.  317.  Double  commissions  will  not  be  allowed.  Aston's  Est. 
4  Whart.  241 ;  Stevenson's  Est.  1  Pars.  Eq.  19.  Nor  commissions  on  rein- 
vestments.    Barton's  Est.  1  Pars.  Eq.  29 ;  Trustees  of  Hemphill,  1  Pars. 


550  ALLOWANCES,    ETC.,    TO    TRUSTEES.        [CHAP.  XXXI. 

time,  travel,  and  labor.  In  many  States,  the  percentage  or 
commissions  are  established  by  statutes  ;  in  others,  the  rates 

^q.  31 ;  Hemphill's  App.  6  Harris,  303.  Nor  interest  on  commissions. 
Armstrong's  Est.  6  Watts,  286 ;  Callaghan  v.  Hall,  1  S.  &  R.  241 ;  Say  v. 
Barnes,  4  S.  &  R.  116.  There  can  be  but  one  compensation,  however 
numerous  the  trustees.  Stevenson's  Est.  1  Pars.  Eq.  19.  Where  a  testator 
directed  his  trustees  to  pay  the  interest  upon  a  fund  set  apart  to  his  widow, 
it  was  held  that  the  trustees  could  not  withhold  a  part  of  the  income  of  such 
fund  as  commissions.  Solliday  v.  Bisset,  2  Jones,  347  ;  but  the  late  case, 
Spangler's  App.  9  Harris,  33,  is  inconsistent  with  the  first  case.  Profes- 
sional and  extra  services  of  a  trustee  may  be  compensated.  Lowrie's  App, 
1  Grant,  Ca.  373 ;  but  not  services  rendered  necessary  by  the  trustee's  own 
wrong.  Stearley's  App.  38  Penn.  St.  525.  If  an  investment  remains  as  it 
was  left  by  the  testator,  the  trustee  can  have  commissions  only  on  the  income. 
McCauseland's  App.  38  Penn.  St.  466;  Luken's  App.  47  Penn.  St.  356; 
Myer's  App.  62  Penn.  St.  104. 

In  Maryland,  the  court  had  power,  by  the  act  of  1798,  to  vary  exec- 
utor's commissions  from  five  to  ten  per  cent  on  the  amount  of  the 
inventory.  Scott  v.  Dorsey,  1  Har.  &  J.  232.  And  he  must  pay  a  tax  of 
ten  per  cent  to  the  State  upon  such  commissions.  Act  of  1844,  c.  187 ; 
William  v.  Mosher,  6  Gill,  454.  The  right  to  this  compensation  is  absolute. 
McKim  V.  Duncan,  4  Gill,  72,  and  extends  to  trustees.  Ringgold  v.  Ring- 
gold, 1  Har.  &  G.  27;  Nicholls  v.  Hodges,  1  Pet.  565;  West  v.  Smith, 
8  How.  411  ;  Abbott  r.  Baltimore,  &c.,  Packet  Co.  4  Md.  Ch.  315; 
Mitchell  V.  Holmes,  1  Md.  Ch.  287.  Commissions  for  the  sale  of  lands  by 
order  of  the  court  are  established  by  rules  of  court  at  seven  per  cent  on  the 
first  hundred  dollars,  six  per  cent  on  the  second,  five  on  the  third,  four  on 
the  fourth,  three  and  a  half  on  the  fifth  and  sixth,  three  on  the  seventh  and 
eighth,  two  and  one-half  on  the  ninth  and  tenth,  and  three  per  cent  on  all 
above  $3,000,  in  addition  to  all  expenses  not  strictly  personal.  Gibson's 
Case,  1  Bland,  147.  Ape)-  diem  allowance  is  disfavored,  but  the  courts  are 
liberal  in  allowing  for  expenses.  Ringgold  v.  Ringgold,  1  Har.  &  G.  27  ; 
DifTenderfer  v.  Winter,  3  G.  &  J.  347;  Jones  v.  Stockett,  2  Bland,  417; 
Chase  v.  Lockerman,  11  G.  &  J.  185;  Compton  v.  Barnes,  4  Gill,  57; 
Green  v.  Putney,  1  Md.  Ch.  267;  Dorsey  r.  Dorsey,  10  Md.  471;  6  Md. 
460;  Ex  parte  Young,  8  Gill,  287;  Northern  C.  R.  Co.  v.  Keighler,  29 
Md.  672. 

In  Virginia,  the  courts  allow  a  commission  of  five  per  cent  upon  the 
receipts.  Cranberry  v.  Cranberry,  1  Wash.  246 ;  Taliaferro  v.  Minor, 
2  Call,  197;  Miller  v.  Beverleys,  4  Hen.  &  M.  420;  Triplett  v.  Jameson, 
2  Munf.  242;  Hipkins  v.  Bernard,  4  Munf.  83;  Kee  v.  Kee,  2  Grat.  132; 
Waddy  v.  Hawkins,  4  Leigh,  458.  Trustees  to  sell  real  estate  may  have 
the  same  commission.  Lyons  v.  Byrd,  2  Hen.  &  Munf.  22;  Deanes  v. 
Scriba,  2  Call,  416.     But  in  cases  where  the  duties  of  the  trustees  have 


§  918.]  COMPENSATION   IN   THE   UNITED    STATES.  551 

are  adjusted  upon  equitable  principles.  These  statutes  gener- 
ally refer  to  the  fees  or  compensation  of  executors,  administra- 

been  long  and  arduous,  and  the  care  and  responsibility  great,  a  larger  sum 
Las  been  allowed.  Fitzgerald  v.  Jones,  1  Munf.  lo6 ;  McCall  v.  Peachey, 
3  Munf.  306  ;  Hipkins  v.  Bernard,  4  jNIunf.  93  ;  Farneyhough  v.  Dickerson, 

2  Rob.  589  ;  Cavendish  v.  Fleming,  3  Munf,  201. 

In  North  Carolina,  trustees  may  be  allowed  a  sum  not  exceeding  five 
per  cent,  together  with  their  necessary  disbursements.  This  sum  is  under 
the  control  of  the  court,  and  may  be  reduced,  but  not  enlarged.  Hodge  v. 
Hawkins,  1  Dev.  &  Bat.  567  ;  Bond  v.  Turner,  2  Taylor,  125  ;  Peyton  v. 
Smith,  2  Dev.  &  Bat.  3-19  ;  Walton  v.  Avery,  2  Dev.  &  Bat.  405  ;  Turnage 
V.  Green,  2  Jones,  Eq.  66.  And  commissions  are  allowed,  although  trus- 
tees are  so  much  at  fault  that  they  are  charged  with  compound  interest. 
Peyton  v.  Smith,  2  Dev.  &  Bat.  325 ;  Thompson  v.  McDonald,  2  Dev.  & 
Bat.  471.  And  although  the  trustees  have  legacies,  unless  the  legacies  are 
given  in  place  of  commissions.  Oden  v.  Windley,  2  Jones,  Eq.  445.  But 
Arnold  v.  Byard,  2  Dev.  Eq.  4,  seems  to  imply  that  commissions  would  not 
be  paid  to  a  trustee  who  misconducts  himself,  nor  where  regular  accounts 
are  not  kept.  Finch  v.  Raynad,  2  Dev.  Eq.  141.  These  rules  apply  to 
trustees,  as  well  as  to  executors  and  guardians.  Boyd  v.  Hawkins,  2  Dev. 
Eq.  211,  334;  Sheril  v.  Shuford,  6  Ired.  Eq.  228;  Raiford  v.  Raiford, 
6  Ired.  Eq.  495;  Ingram  v.  Kirkpatrick,  8  Ired.  Eq.  62.  A  trustee  ile  son 
tort  will  not  be  allowed  commissions.     Hagler  v.  McCombs,  66  N.  C.  345. 

In  South  Carolina,  a  commission  of  two  and  one-half  per  cent  is  allowed 
as  compensation  by  statute,  and  the  courts  disclaim  any  discretionary  power 
over  it.  But  if  the  rate  of  compensation  is  named  in  the  instrument  of  trust, 
the  statute  has  no  application.  College  of  Ciiarleston  v.  Wellington,  13  Rich. 
Eq.  195;  1  Rev.  Dig.  392.  Ten  per  cent  is  allowed  upon  the  income  of  all 
sums  at  interest.  These  sums  embrace  all  personal  expenses,  so  that  all 
charges  for  travel  are   disallowed.     Act  of  1789  ;   Ex  parte  Witherspoon, 

3  Rich.  Eq.   14;  Norton  v.  Gillison,  4  Rich.   E(j.  219;   Logan  v.  Logan, 

1  McCord,  Ch.  5 ;  Snow  v.  Galium,  1  Des.  542.  Though  where  executors 
were  obliged  to  travel  to  Cuba  to  settle  an  estate,  the  gift  of  $1,000  by  the 
legatee  was  upheld.     Erwing  w.  Seigling,  Riley,  Ecj.  202;  Ruff  y.  Summers, 

4  Dev.  529.  Aimual  accounts  must  be  filed,  and  any  omission  to  file  them 
is  a  forfeiture  of  all  commissions.  Benson  v.  Bruce,  4  Dev.  464;  Eilmonds 
V.  Crenshaw,  Harp.  233  ;  Frazier  v.  Vaux,  1  Hill,  Ch.  203;  Wright  v.  Wright, 

2  McCord,  Ch.  196.  So  if  vouchers  are  not  filed  with  the  accounts.  Black 
w.  Blakely,  2  McCord,  Ch.  8 ;  McDowell  v.  Caldwell,  2  McCord,  Ch.  59. 
Trustees  are  subject  to  the  same  rules,  except  they  are  not  required  to  file 
annual  accounts.  Bonn  i'.  Davant,  Riley,  Ch.  44;  Muckenfoss  t\  Heath, 
1  Hill,  Ch.  184 ;  Tanaux  v.  Ball,  1  McCord,  Eq.  458.  But  if  they  agree 
to  serve  without  compensation,  they  are  not  entitled  to  commissions.  Mc- 
Caw  V.  Blunt,  2  McCord,  Eq.  90;  Vestry,  &c.  v.  Barksdale,  1  Strob.  197. 


552  ALLOWANCES,   ETC.,   TO   TRUSTEES.        [CHAP.  XXXI. 

tors,  and  guardians  ;  but  the  courts  by  equitable  construction 
have  extended  their  provisions  to  trustees  and  others  perform- 
In  Sollee  V.  Croft,  9  Rich.  Eq.  474,  a  trustee  was  allowed  for  his  personal 
services  in  going  to  Alabama  to  secure  the  trust  property. 

The  statutes  of  Georgia  are  very  similar  to  those  of  South  Carolina.  An 
executor  forfeits  all  compensation  if  he  neglects  to  make  annual  returns. 
Fall  V.  Simons,  6  Ga.  274 ;  Kenan  v.  Paul,  8  Ga.  417.  By  act  of  Feb. 
1850,  2  Cobb,  Dig.  540,  trustees  are  entitled  to  a  commission :  Lowe  v. 
IVIorris,  13  Ga.  169;  but  not  to  encroach  upon  the  corpus  oi  the  estate. 
Burney  v.  Spear,  17  Ga.  225.     See  Price  v.  Cutts,  29  Ga.  142. 

In  Alabama,  compensation  is  allowed  to  trustees.  Spence  v.  Whitaker, 
3  Porter,  327 ;  Phillips  v.  Thompson,  9  Porter,  669 ;  Bothen  v.  McColl,  5 
Ala.  314 ;  Carrol  v.  Moore,  7  Ala.  617 ;  Benford  v.  Daniels,  13  Ala.  613. 
No  statute  has  determined  the  rate,  and  each  case  is  left  to  depend  upon  the 
labor  and  trouble,  and  the  amount  of  the  estate.  Harris  v.  Martin,  9  Ala. 
899;  Gould  v.  Hayes,  25  Ala.  432.  Though  five  per  cent  commission  is  the 
ordinary  allowance.  Bendell  v.  Bendell,  24  Ala.  306.  But  a  per  diem 
allowance  may  be  made :  Marshall  v.  Halloway,  2  Stewart,  453 ;  Magee  v. 
Cowperthwaite,  10  Ala.  968 ;  or  a  gross  sum.  O'Neil  v.  Donnell,  9  Ala. 
738.  Expenses  are  also  allowed,  Hearns  v.  Savage,  16  Ala.  291.  Com- 
pensation, however,  is  a  matter  of  discretion,  and  may  be  withheld  for  mis- 
conduct. O'Neil  u.  Donnell,  9  Ala.  738;  Powell  v.  Powell,  10  Ala.  914; 
Gould  V.  Hayes,  25  Ala.  432 ;  Hall  v.  Wilson,  14  Ala.  295 ;  Doneldson  i'. 
Pusey,  13  Ala.  752. 

In  Mississippi,  an  allowance  of  froin  five  to  ten  per  cent  upon  the  amount 
of  an  estate  upon  final  settlement  is  made.  Hutch.  &  How.  Dig.  414,  §  96  ; 
Merrill  v.  Moore,  7  How.  (Miss.)  292  ;  Cherry  v.  Jarratt,  3  Cush.  (Miss).  221  ; 
Sliurtleflf  ».  Witherspoon,  1  Sm.  &  M.  622.  These  commissions  are  intended 
to  embrace  all  the  expenses  of  settling  an  estate.  Satterwhite  v.  Littlefield, 
13  Sm.  &  M.  306.  There  may  be  cases  where  an  extra  allowance  will  be 
made  for  legal  expenses.  Cherry  v.  Jarratt,  3  Cush.  221 ;  Shirley  v. 
Shattuck,  6  Cush.  26. 

In  Tennessee,  previous  to  1822,  no  compensation  to  trustees  for  time  and 
trouble,  or  travelling,  was  allowed,  but  reasonable  costs  for  prosecuting  and 
defending  suits  were  allowed:  Stephenson  v.  Stephenson,  3  Hayw.  123; 
Bryant  v.  Pickett,  3  Hayw.  225;  Stephenson  v.  Yandle,  5  Hayw.  261  ;  but 
since  1822,  reasonable  compensation  is  allowed.     See  act  January  27,  1838. 

In  Kentucky,  the  English  rule  of  not  allowing  compensation  for  time  and 
trouble  was  adhered  to  for  a  considerable  time.  Hite  v.  Hite,  1  B.  Mon. 
179;  Breckenridge  u.  Brooks,  2  A.  K.  Marsh.  339;  McMullen  v.  Scott,  2 
Mon.  151.  But  it  was  altered  by  statute.  1  Morehead  &  Brown,  Dig. 
668.  Five  per  cent  is  allowed  in  some  cases.  Logan  v.  Troutman,  3  A.  K. 
]\Iarsh.  67;  Ramsey  w.  Ramsey,  4  Mon  152;  Wood  v.  Lee,  5  Mon.  66; 
McCracken  v.  McCracken,  6  Mon.  342;  Webb  v.  Webb,  6  Mon.   167.     In 


§§  918,919.]       COMPENSATION   IN   THE    UNITED    STATES.  553 

iiig  fiduciary  duties.  But  if  it  appears,  from  the  instrument  of 
trust  or  otherwise,  that  it  was  the  intention  that  no  comjjensa- 
tion  should  he  charged,  none  will  be  allowed.^ 

§  919.  The  usual  practice  in  relation  to  trusts  is  to  allow 
trustees  a  commission  upon  the  amount  of  the  yearly  income 
received  and  paid  out  by  them.  This  commission  varies  accord- 
ing to  the  rules  in  the  various  States.  In  some  States,  commis- 
sions are  allowed  for   receiving  and  investing   the    ])rincipal 

other  cases,  seven  and  one-half  per  cent,  and  in  others  ten  per  cent,  has 
been  allowed.  Wood  v.  Lee,  5  Mon.  66 ;  Bowling  v.  Cobb,  6  B.  Mon. 
358;  Floyd  v.  Floyd,  7  B.  Mon.  292.  No  sum  is  fixed  as  proper  compen- 
sation for  trustees,  but  a  reasonable  sum  will  be  allowed.  Phillips  v.  Bus- 
tard, 1  B.  Mon.  350;  Lane  v.  Coleman,  8  B.  Mon.  571:  Bank  of  United 
States  V.  Hirst,  4  B.  Mon.  439;  Greening  v.  Fox,  12  B.  Mon.  190.  In 
Fleming  v.  Wilson,  G  Bush,  610,  it  was  held  that  if  a  trustee  had  been  faith- 
ful and  skilful,  and  had  been  subjected  to  unnecessary  litigation  by  the  cestui 
que  trust,  a  liberal  compensation  should  be  allowed  him,  and  all  his  costs  and 
expenses,  out  of  the  trust  fund. 

Tn  Oliio,  under  Act  1840,  c.  208,  §  175,  Kerwin,  Dig.  607,  executors 
may  receive  commissions  at  the  rate  of  six  per  cent  upon  the  first  thousand 
dollars,  four  per  cent  upon  the  next  four  thousand  dollars,  and  upon  all 
sums  above  five  thousand  dollars  two  per  cent ;  and  the  court  may  make 
such  further  allowance  for  expenses  and  extra  services  as  may  seem  reason- 
able. It  has  been  thought  that  trustees  do  not  come  within  the  provisions 
of  the  act,  and  that  they  were  not  entitled  to  compensation  in  the  absence 
of  an  agreement  to  that  effect.  Gilbert  i'.  Sutlilf,  3  Ohio  St.  149.  They 
shall  be  allowed  their  expenses ;  but  if  they  refuse  to  account  or  misconduct 
themselves,  their  expenses  may  lie  disallowed. 

In  Illinois,  executors  may  receive  a  commission  not  exceeding  six  per 
cent  on  the  personal  estate,  and  three  per  cent  upon  the  money  arising  from 
the  sales  of  land,  and  such  further  allowances  for  expenses  as  are  reasonable. 
2  Rev.  Stat.  1219,  March  3,  1845,  §  36.  But  trustees  receive  no  compensa- 
tion except  under  a  special  stipulation.     Constant  v.  Matteson,  22  111.  54G. 

In  ]\Iissouri,  executors  are  allowed  commissions  not  exceeding  six  per 
cent  on  the  personal  estate  and  the  sales  of  land.  A  gross  sum  m.iv  be 
allowed.     Fisher  v.  Smart,  7  Mo.  581. 

In  Iowa,  see  First  National  Bank  v.  Owen,  23  Iowa,  185. 

In  California,  professional  services  of  the  trustee  must  be  paid  for  out  of 
the  income  of  the  property.     Filing  v.  Naglee,  9  Cal.  683. 

In  Arkansas,  see  Briscoe  v.  State,  23  Ark.  592. 

'  Northern  Central  ll.R.  Co.  v.  Keighton,  29  Md.  572;  Mason  v.  Rose- 
velt,  5  John.  Ch.  534. 


554  ALLOWANCES,    ETC.,   TO   TRUSTEES.        [CHAP.  XXXI. 

fund,  and  another  commission  allowed  at  the  close  of  the 
trust  for  the  care  of  the  fund  and  for  paying  it  over  or  distrib- 
uting it  to  the  persons  entitled.^  Care  is  taken  that  double 
commissions  are  not  allowed.  In  many  States  the  commis- 
sions and  compensation  of  the  trustees  depend  upon  their 
fidelity  in  the  administration  of  the  trust.  If  they  are  guilty 
of  any  breach  of  trust,  or  of  any  vexatious  or  improper  con- 
duct, the  courts  can  withhold  all  compensation,  or  they  can 
allow  such  compensation  as  will  pay  for  the  value  of  their  ser- 
vices so  far  as  they  have  been  beneficial  to  the  estate.  In  some 
instances,  compensation  has  been  allowed  and  retained  towards 
making  good  a  breach  of  the  trust.^  In  other  States,  it  has 
been  held  that  the  trustees  have  a  vested  right  to  the  com- 
missions or  compensation  given  by  the  statutes.  But  if  the 
rate  is  named  in  the  instrument  of  trust,  it  cannot  be  increased.^ 

'  In  Pennsylvania,  one  and  one  half  per  cent  was  allowed.  Luken's  App. 
47  Penn.  St.  356. 

*  Belknap  v.  Belknap,  5  Allen,  472. 

^  Briscoe  v.  State,  23  Ark. -092;  College  of  Charleston  v.  Wellington, 
13  Rich.  Eq.  195. 


§§  919,  920.]  DETERMINATION    OF   THE   TRUST.  555 


CHAPTER   XXXII. 

DETERMINATION   OF   THE   TRUST   AND   DISTRIBUTION   OF   THE    TRUST 

FDND. 

§  920.  Trusts  may  be  terminated  by  decree  upon  the  consent  of  all  parties. 

§  921.  How  the  responsibility  of  a  trustee  may  be  terminated. 

§  922.  Whether  trustees  are  entitled  to  a  release  and  discharge.  , 

§  923.  Effect  of  a  release  or  discharge. 

§  924.  Where  the  fund  is  distributed  under  a  decree. 

§  925.  If  trustees  pay  to  new  trustees,  they  may  insist  upon  a  release. 

§  926.  Trustees  must  see  that  the  fund  reaches  the  proper  persons. 

§  927.  Trustees  are  responsible  for  any  mistake  in  that  respect. 

§  928.  Right  of  the  trustees  to  a  decree  of  the  court. 

§  929.  Trustees  ma_v  pay  the  fund  to  agents  and  attorneys,  but  they  must  see  to  the 

validity  of  their  authority  to  receive  it. 
§  930.  To  what  persons  they  may  pay. 

§§  931,  932.  Remedies  in  case  they  pay  to  the  wrong  parties. 
§  933.  The  costs  of  distributing  the  trust  property  must  be  paid  out  of  the  fund. 

§  920.  There  are  two  modes  in  which  a  trust  may  be  ter- 
minated. (1.)  It  may  terminate  upon  the  accomplishment  of 
the  jmrposes  for  which  it  was  created.  When  the  time  expires 
during  wliich  a  trust  is  to  exist,  or  when  the  event  happens 
upon  wliich  a  trust  is  to  cease,  and  the  trustees  have  performed 
all  their  duties  and  distributed  the  fund  as  directed,  the  trust 
is  at  an  end.  It  has  been  previously  stated,  that  when  the 
purposes  of  a  trust  are  accomplislicd,  conveyances  from  the 
trustees  will  be  presumed  after  a  sufficient  lapse  of  time.^  If 
a  trust  ceases  by  expiration  of  time,  and  trustees  are  to  divide 
real  estate  equally  among  the  cestuis  que  trust  entitled  to  the 
same,  a  conveyance  to  them  as  tenants  in  common  is  a  per- 
formance of  their  duties  and  powers,  and  ends  the  responsibility 
of  the  trustees.^     (2.)  Although  a  trust  may  not  have  ceased 

»  Manice  v.  Manice,  43  N,  Y.  203 ;  Deering  v.  Tucker,  55  Me.  284. 
*  How  V.  Waldron,  98  IVIass.  281;   Emerson  v.  Cutler,  14  Pick.  114; 
Fisher  v.  Wigg,  1  P.  Wm.  14. 


556  DETERMINATION    OP   THE  TRUST.       [CHAP.  XXXII. 

by  expiration  of  time,  and  although  all  its  purposes  may  not 
have  been  accomplished,  yet  if  all  the  parties,  who  are  or  may 
be  interested  in  the  trust  property,  are  in  existence,  and  sui 
juris,  and  if  they  all  consent  and  agree  thereto,  courts  of  equity 
may  decree  the  determination  of  a  trust  and  the  distribution  of 
the  trust  fund  among  those  entitled.  The  same  rule  applies  if 
it  become  impossible  to  carry  out  the  trust.^  It  was  for  some 
time  doubtful  whether  a  trust  could  be  thus  determined  prior  to 
the  time  contemplated  by  a  testator;  but  it  is  now  well  settled 
that  where  all  the  parties  are  capable  of  acting,  and  desire  to 
terminate  the  trust,  courts  can  decree  its  determination.^  There 
can  be  no  doubt  upon  principle,  that,  when  all  those  who  have 
the  entire  legal  and  beneficial  interest  in  property  agree  to  dis- 
pose of  it  in  a  particular  manner,  courts  will  give  effect  to  their 
agreements.  And  so  in  case  of  a  marriage  settlement  of  a 
woman's  property  in  trust  for  herself  and  her  issue  and  her  hus- 
band, and  there  are  issue,  and  the  marriage  has  been  dissolved 
upon  the  libel  of  the  wife,  the  court  decreed  the  termination  of 
the  trust  and  the  payment  of  the  trust  fund  to  the  wife.^  But 
in  settlements  where  there  are  cross  remainders  or  contingent 
interests  which  cannot  be  determined  and  adjusted  until  the 
happening  of  certain  events,  the  trusts  cannot  be  terminated, 
nor  can  the  share  of  either  one  of  the  cestuis  que  trust  be  paid 
over  to  him.^  If  a  trust  is  created  for  the  life  of  one,  it  can- 
not be  terminated  before  his  death,  although  there  are  other 
words  that  imply  that  it  may  be  terminated  earlier.^  If  it  is 
clear,  however,  that  part  of  the  principal  of  a  fund  is  to  be 

'  Hawthorn  v.  Hog^G  Bush,  501. 

*  Ante,  §§  304,  520/  Bowditch  v.  Andrew,  8  Allen,  339;  Smith  v.  Har- 
rington, 4  Allen,  566,  568;  Norris  v.  Thompson,  4  Green  Ch.  314;  Inches 
V.  Hill,  106  Mass.  577  ;  Taylor  v.  Huber,  13  Ohio  St.  288;  Short  v.  Wilson, 
13  John.  53.     But  see  Walker  v.  Sharp,  68  N.  C.  363. 

3  Fussell  V.  Dowding,  L.  R.  14  Eq.  423;  Wells  v.  Malbon,  31  Beav.  48; 
Wilkinson  v.  Gibson,  L.  R.  4  Eq.  162 ;  Swift  v. ,  L.  R.  10  Eq.  15. 

*  Prentice  v.  Hall,  106  Mass.  597. 

*  Schaffer  v.  Wadsworth,  106  Mass.  19. 


§§  920,  921.]  DISCHARGE   OF   THE   TRUSTEES.  557 

paid  over  to  one  of  the  ceshds  que  trust  upon  his  arriving  at 
the  age  of  twenty-one,  or  upon  any  other  eTcnt,  the  trust  will 
terminate  as  to  that  part  and  continue  as  to  others.^  But  a 
part  of  the  cestuis  que  truU  cannot  terminate  the  trust.^ 

§  921.  The  trustee  may  be  discharged  from  the  office  and 
from  future  liability  in  several  different  ways.  (1.)  The  ex- 
piration or  full  performance  of  all  the  trusts,  and  a  convey- 
ance or  transfer  of  the  trust  property  according  to  the  terms 
of  the  trust,  is  a  discharge  of  the  trustee.'^  (2.)  The  trustee 
may  be  discharged  by  a  decree  of  the  court  declaring,  with 
the  assent  of  all  parties  in  interest,  the  trust  at  an  end, 
and  that  the  trustee  shall  distribute  the  fund.^  (3.)  Although 
the  trust  is  not  determined,  the  trustee  may  be  discharged 
from  his  office  with  the  concurrence  of  all  the  cestuis  que 
trust,  if  sui  juris  ;  and  the  appointment  of  a  new  trustee  is 
not  absolutely  necessary  to  give  validity  to  the  discharge.^ 
(4.)  A  trustee  may  be  discharged,  and  a  new  one  appointed,  by 
virtue  of  a  power  to  that  effect  contained  in  the  instrument  of 
trust.^  (5.)  The  death  of  a  trustee  operates  to  discharge  his 
estate  from  all  responsibility  for  acts  done  by  his  cotrustees  or 
others  after  his  decease.'^  (6.)  A  trustee  may  be  discharged 
by  a  decree  of  court,  appointing  another  trustee,  or  giving  such 
other  directions  to  the  trust  as  it  sees  fit.^  (7.)  The  sale  of 
the  trust  estate  under  a  prior  incumbrance,  or  taking  it  from 
the  trustee  under  a  title  paramount,  puts  an  end  to  his  duties 
and  responsibility.^  So  a  release  by  the  trustee  to  the  assignor, 
in  an  assignment  for  creditors,  puts  an  end  to  the  trust ;  '^^  and 

1  Walker  v.  Beal,  106  Mass.  110. 
^  Bancroft  v,  Lepieur,  48  Mo.  418. 

^  Goodson  V.  Ellison,  3  Russ.  593 ;    Halford  v.  Phipps,  3  Beav.  434 ; 
Tavenner  v.  Robinson,  2  Rob.  (Va.)  280. 

*  See  ante,  §  920.  »  Ante,  §§  274,  285. 

«  Ante,  §§  288,  297.  ^  Ante,  §  426. 

»  Ante,  §§  282,  283. 

»  De  Bevoise  r.  Sandford,  1  HofT.  Cii.  195. 
'0  Huckabee  v.  Billingsly,  10  Ala.  414. 


558  RELEASE   OP    TRUSTEES.  [CHAP.  XXXII. 

a  purchase  of  the  trust  estate  by  the  trustee  ends  the  trust,  if 
the  trustee  is  duly  authorized  to  make  the  purchase.^  A  con- 
veyance by  the  trustee  to  the  cestui  que  trust  merges  the  titles 
and  determines  the  trust,  where  it  is  proper  that  such  convey- 
ance should  be  made  ;  but  if  the  cestui  que  trust  is  a  minor,  the 
trustee  wilP  be  holden,  notwithstanding  such  conveyance.^  So 
if  tl>e  cestui  que  trust  is  a  married  woman,  a  conveyance  to 
her  by  the  trustee  will  not  discharge  him ;  but  after  the  death 
of  her  husband  such  conveyance  will  discharge  him.^  A  mere 
relinquishment  of  the  trust,  or  of  the  property,  which  does  not 
purport  to  convey  the  property  to  some  person  authorized  to 
receive  it,  does  not  discharge  the  trustee.^  But  payment  by 
the  trustee  to  a  person  entitled  to  receive  the  money  is  a  dis- 
charge of  the  trustee.^  Mere  neglect  for  a  long  time  to  ad- 
minister a  trust  does  not  terminate  itJ 

§  922.  The  discharge  of  a  trustee,  upon  the  determination  of 
the  trust,  or  upon  the  appointment  of  another  trustee,  does  not 
of  itself  release  the  trustee  from  responsibility  for  his  past  con- 
duct, and  the  cestui  que  trust  may  still  inquire  into  his  adminis- 
tration prior  to  his  discharge  ;  ^  and  may  require  him  to  account 
for  all  his  transactions.^  Therefore  it  is  usual,  upon  the  final 
settlement  and  transfer  of  the  trust  property  to  the  parties 
entitled,  to  discharge  the  trustee  by  a  formal  release  of  all 
claims  executed  by  all  the  cestuis  que  trust  who  are  sui  juris. 
It  seems  to  be  a  reasonable  requirement,  on  the  part  of  the 

'  Johnson  v.  Johnson,  5  Ala.  90. 

•^  Waugh  V.  Wyche,  23  L.  J.  Ch.  823.  ^  Ante,  §  624. 

*  Ante,  §  652;  Parker  v.  Converse,  5  Gray,  336. 

°  Dick  V.  Pitchford,  1  Dev.  &  Bat.  Eq.  480;  Richardson  v.  Cole,  2 
Swan,  100 ;  Diefendorf  v.  Spraker,  10  N.  Y.  246  ;  Waugh  v.  Wyche,  23 
L.  J.  Ch.  833 ;  Thatcher  v.  Candee,  3  Keyes,  157 ;  Webster  v.  Vander- 
venter,  6  Gray,  429;  Gilchrist  v.  Stevenson,  9  Barb.  9. 

«  Hayes  v.  Otelly,  L.  R.  14  Eq.  4. 

■^  Tainter  v.  Clark,  5  Allen,  66. 

«  Wright's  Trusts,  3  K.  &  J.  419 ; v.  Osborne,  6  Ves.  455. 

9  Clark  V.  Devereaux,  1  S.  C.  172. 


§§  921,  922.]        RELEASE  OP  TRUSTEES.  559 

trustee,  wlien  he  parts  with  the  fund  and  the  muniments  of 
title,  and,  in  some  sort,  with  the  means  of  defence,  that  he 
should  be  secured  against  future  litigation  ;  for  although  the 
cestuis  que  trust  may  impeach  such  a  receipt  and  discharge  on 
the  ground  of  fraud,  accident,  or  mistake,  yet  it  is  prima  facie 
evidence,  and  throws  the  burden  upon  those  seeking  to  impeach 
it.^     It  has  been  determined,  however,  that  where  a  cestui  que 
trust  has  a  clear  right  to  a  conveyance  or  transfer  of  the  prop- 
erty, the  trustee  cannot  demand  a  release,  and  refuse  to  make 
the  transfer  until  it  is  given.^     It  has  also  been  said,  that,  where 
trustees  transfer  the  property  in  accordance  with  the  terms  of 
the  instrument  of  trust,  they  are  not  entitled  to  a  receipt  or 
discharge,  as  a  debtor,  making  a  tender  of  payment  of  a  debt 
owed  by  him,  cannot  demand  a  receipt ; "  but  if  they  transfer 
the  trust  property  to  the  cestuis  que  trust,  in  a  manner,  or  at  a 
time  not  contemplated  by  the  instrument,  they  may  require  a 
receipt  and  discharge.*     Mr.  Lewin  criticises  this  distinction 
made  by  Vice-Chancellor  Kindersley ;  ^  but  it  is  obvious  that 
the  trustees  cannot  be  com})elled  to  transfer  the  property,  ex- 
cept in  the  exact  manner,  and  upon  the  terms,  and  at  the  time 
pointed  out,  in  the  instrument  of  trust ;  if,  therefore,  the  cestuis 
que  trust  agree  that  the  trustees  may  depart  from  the  terms  of 
the  instrument,  they  may  require  a  release  under  seal,  or  even 
a  bond  of  indemnity,  and  they  may  refuse  to  part  with  tlie  fund 
until  such  security  is  given.     It  has  been  held,  however,  that 
an  executor,  in  winding  up  and  distributing  an  estate,  is  entitled 
to  a  release.^     So  wliere  the  title  of  the  cestui  que  trust  is  not 
perfectly  clear,  or  there  is  a  possibility  that  there  may  be  other 

1  Fowler  V.  Wyatt,  24  Beav.  232. 

*  Fulton  V.  Gilinour,  8  lieav.  15-1;  Hill  on  Trustees,  580;  Cliadwick  v. 
Heatley,  2  Coll.  137;  Wright's  Trusts,  3  K.  &  J.  421 ;  Warter  v.  Ander- 
son, 11  Ilare,  303. 

'  King  V.  Mullins,  1  Drew.  808. 

*  IbiiL;  Re  Cater's  Trust,  25;  Beav.  366;  Wright's  Trusts,  8  K.  &  J. 
421. 

6  Lewin  on  Trusts,  289  (5th  ed.). 

*  King  V.  Mullins,  1  Drew.  311 ;  Chadwick  v.  Ileatley,  2  Coll.  137. 


560  RELEASE   OP   TRUSTEES.  [CHAP.  XXXII. 

claimants,  or  that  the  propriety  of  the  conveyance  or  payment 
may  be  called  in  question  at  some  future  time,  the  trustees  may 
require  an  indemnity  against  such  future  claims,  or  may  refuse 
to  convey  without  a  decree  of  the  court.^ 

§  923.  Of  course,  a  person  not  sui  juris,  as  an  infant,  cannot 
bind  himself  by  a  receipt,  release,  or  bond  of  indemnity .^  If  a 
release  is  executed  to  a  trustee  by  a  cestui  que  trust  just  after 
coming  of  age,  the  courts  will  investigate  the  transaction,  and 
require  evidence  that  the  trustee  took  no  advantage  of  his  posi- 
tion and  influence.^  A  release  by  the  cestuis  que  trust  will  not 
be  binding,  unless  the  parties  are  made  fully  acquainted  with 
their  own  rights,  and  the  nature  and  full  extent  of  the  liabili- 
ties of  the  trustee.*  Any  concealment,  misrepresentation,  or 
other  fraudulent  conduct,  will  vitiate  such  a  release.'^  There 
should,  therefore,  be  a  full  statement  and  detailed  explanation 
of  the  accounts,  which  should  be  referred  to  in  the  receipt,  re- 
lease, or  discharge,  especially  if  there  is  any  thing  in  the  nature 
of  a  breach  of  trust.^  Even  if  the  accounts  are  clearly  stated, 
the  release  will  be  set  aside,  if  there  is  any  misapprehension  as 
to  the  basis  upon  which  they  are  made  up.'^  As  before  stated, 
a  release  executed  under  proper  advice,  with  ample  time  for 
mature  deliberation,  and  "upon  full  information,  is  prima  facie 
valid  ;  and  the  burden  is  upon  the  party  disputing  it  to  im- 
peach it.^ 

1  Goodson  V.  Ellison,  3  Russ.  583 ;  Re  Primrose,  23  Beav.  590 ;  Talbot  v 
Radnor,  3  M.  &  K.  252;  Curteis  v.  Candler,  6  Mad.  123;  Knight  v.  Mar- 
tin, 1  R.  &  M.  70;  Taml.  237;  Taylor  v.  Glanville,  3  Mad.  176;  Angler 
V.  Stannard,  3  M.  &  K.  566 ;  Campbell  v.  Home,  1  Y.  «&  Col.  Ch.  664 ; 
Gardiner  v.  Downes,  22  Beav.  397 ;  Merlin  v.  Blagrave,  25  Beav.  137. 

'  Overton  v.  Banister,  3  Hare,  503. 

'  Walker  v.  Symonds,  2  Swans.  69 ;  Wedderburn  v.  Wedderburn,  2 
Keen,  722;  4  M.  &  Cr.  41. 

4  Ibid. ;  Charter  v.  Trevelyan,  8  Jur.  1015  ;  11  CI.  &  Fin.  714. 

*  Ibid. ;  Penobscot  R.R.  Co.  v.  Mayer,  60  Me.  306. 

«  Ibid.  T  Ibid. 

8  Be  Sherwood,  3  Beav.  338;  Portlock  v.  Gardner,  1  Hare,  594;  Millar 
V.  Craig,  6  Beav.  433 ;  Fowler  v.  Wyatt,  24  Beav.  232. 


§§  922-926.]       DISTRIBUTION   OF   THE   TRUST    FUND.  561 

§  924.  Where  tlie  trustee  pays  and  distributes  the  trust  fund 
under  the  direction  and  decree  of  the  court,  he  is  indemnified 
by  the  order  itself,  and  needs  no  release.  It  would  be  impos- 
sible to  hold  any  trustee  responsible  for  obeying  the  orders  of 
a  court.  It  is,  however,  his  duty  to  inform  the  court  fully  of 
all  material  facts  within  his  knowledge  ;  for  a  decree  procured 
by  any  concealment  or  other  management  would  be  opened, 
and  the  trustee  might  be  held  responsible.^ 

§  925.  If  the  cestuis  que  trust  create  by  agreement  a  new 
trust,  and  desire  the  trustees  of  the  old  trust  to  convey  the 
property  to  new  trustees  under  a  new  settlement,  the  old  trus. 
tees  may  insist  upon  a  receipt  for  the  property  ;  but  whether 
they  can  insist  upon  a  discharge  from  all  past  liabilities,  or 
ujjon  a  general  indemnity,  is  doubtful.  Mr.  Lewin  says,  that 
this  requisition  of  the  trustees  is  generally  complied  with, 
though  it  could  not  be  enforced.^ 

§  926.  Trustees,  and  all  other  persons  having  money  in  their 
hands  to  distribute  and  pay  over  to  other  persons,  must  see 
that  the  money  reaches  the  hands  of  the  persons  entitled  to 
receive  it ;  for  if  they  make  any  mistake  in  the  person  to  whom 
they  pay  the  money,  they  are  still  liable  to  ])ay  it  to  the  proper 
person.  If  a  person  borrows  money  of  a  trustee,  and  subse- 
quently discovers  that  it  is  trust  money,  loaned  in  breach  of 
the  trust,  he  cannot  safely  pay  it  back,  unless  the  trustee  has 
the  power  of  signing  receipts.^     If  the  trustee  has  notice  of  an 

1  Waller  r.  Barrett,  24  Beav.  3(jC  ;  Farrell  v.  Smith,  2  B.  &  B.  337; 
Williams  v.  Headland,  4  Gif.  495 ;  Fletcher  v.  Stevenson,  3  Hare,  370 ; 
Gillespie  v.  Alexander,  3  Russ.  137;  Sawyer  v.  Birehmore,  1  Keen,  401  ; 
David  I'.  Frowd,  1  U.  &  K.  209  ;  Smith  v.  Smith,  1  Dr.  &  Sm.  384;  Knateh- 
bull  V.  Fearnhead,  3  M.  &  Cr.  12G ;  Underwood  v.  Hatton,  o  Beav.  39 ; 
Bennett  v.  Lytton,  2  John.  &  Hem.  155 ;  Low  v.  Carter,  1  Beav.  42G ; 
Moor's  App.  10  Barr,  435;  Coventry  v.  Coventry,  1  Keen,  758;  Green- 
wood V.  AVakeford,  1  Beav.  366. 

^  Lewin,  289;  Hill,  581;  He  Cater's  Trusts,  25  Beav.  .356. 

'  Sheridan  v.  Jones,  7  Ir.  Eq.  115;  Abbott  v.  Reeves,  49  Penn.  St.  494. 

VOL.  II.  3G 


562  DISTRIBUTION   OF   THE   TRUST    FUND.       [CHAP.  XXXTI. 

assignment  by  the  cestui  que  trust,  lie  cannot  safely  pay  to  the 
assignor  either  principal  or  interest,  although  the  assignment 
is  in  the  nature  of  a  mortgage  only  ;  ^  for  notice  to  the  trustee 
of  the  assignment  is  equivalent  to  taking  possession  by  the 
assignee  under  a  mortgage.^  Even  if  the  deed  is  fraudulent 
and  voidable,  the  trustee  cannot  pay  to  the  assignor  until  it  is 
avoided.  On  the  other  hand,  it  is  said  that  the  trustee  may 
safely  pay  to  the  assignee,  until  the  deed  is  impeached,  espe- 
cially if  the  assignee  has  the  power  of  signing  receipts.^  If  the 
cestui  que  trust  is  dead,  payment  is  to  be  made  to  his  personal 
representatives ;  and  if  the  trustee  refuses  to  make  such  pay- 
ment, and  involves  himself  in  disputes  over  the  cestui  que  trust's 
estate,  he  will  be  ordered  to  pay  the  costs  of  a  suit  for  the 
recovery  of  the  fund.*  If  the  cestui  que  trust  is  a  married 
woman,  the  property,  if  settled  to  her  separate  use,  may  be 
paid  over  to  her ;  or  if  she  is  divorced,  it  may  be  paid  to  her  as 
if  her  husband  was  dead.^ 

§  927.  If  through  any  misapprehension  on  the  part  of  a  trus- 
tee, he  makes  a  payment  to  a  person  not  authorized  by  the 
terms  of  the  trust  to  receive  it,  he  will  be  held  personally 
responsible  for  the  misapplication,  to  the  persons  W'ho  can 
establish  a  better  right ;  and  the  advice  of  counsel  will  not 
protect  him  in  making  a  wrong  payment.^  There  is  a  dictum 
to  the  contrary  in  Ycz  v.  Emery  ; '  but  the  general  rule  pre- 
vails.    But  if  trustees  act  in  good  faith  in  such  case,  and  under 

1  Cresswell  v.  Dewell,  4  Gif.  460. 

^  Loveriflge  v.  Cooper,  3  Russ.  58. 

3  Beddoes  i\  Pugh,  26  Beav.  407. 

"  Smith  V.  Bolden,  33  Beav,  262. 

*  Wells  V.  Malbon,  31  Beav.  48. 

6  Doyle  V.  Blake,  2  Sch.  &  Lef.  243;  Peers  v.  Ceeley,  15  Beav.  209; 
Urch  V.  Walker,  3  M.  &  C.  705;  Boulton  v.  Beard,  3  De  G.,  M.  &  G. 
608;  Turner  v.  IMaiile,  3  De  G.  &  Sm.  497;  Be  Knight's  Trusts,  27  Beav. 
49;  Neff's  App.  57  Penn.  St.  91;  Miller  v.  Proctor,  20  Ohio  St.  444. 

'  5  Ves.  141. 


§§  920-928.]       DISTRIBUTION    OF   THE   TRUST    FUND.  563 

the  advice  of  counsel,  the  court  will  not  impose  costs. ^  If  the 
payment  is  to  be  made  according  to  the  laws  of  the  domicile  of 
the  trustees,  they  must  be  taken  to  know  the  law,  and,  if  they 
mistake  the  law,  they  are  personally  responsible  ;2  l)ut  they  are 
not  bound  to  know  the  laws  of  foreign  countries,  unless  called 
to  their  notice  ;  if,  therefore,  they  proceed  in  the  ordinary 
manner,  according  to  the  prima  facie  line  of  their  duty,  they 
will  be  excused  if  they  mistake  the  laws  of  foreign  lands. ^ 
But  as  personal  property  is  regulated  by  the  law  of  the  domicile 
of  the  owner,  it  is  always  safer  for  the  trustee  to  inquire  as  to 
the  law,  if  the  cestui  que  trust  is  domiciled  abroad  ;  although 
he  may  not  be  liable  for  a  mistake,  if  the  difference  between 
the  laws  of  the  two  countries  is  not  brought  to  his  notice* 

§  928.  A  trustee  cannot  be  expected  to  incur  the  least  risk 
in  tlie  distribution  of  the  trust  fund.  Therefore,  where  there  is 
a  mere  shadow  of  doubt  as  to  the  rights  of  the  parties,  he  may 
require  a  bond  of  indemnity.  Such  a  bond,  however,  is  not 
very  satisfactory,  as  tlie  obligors  may  decease  and  their  prop- 
erty be  divided  long  l)efore  there  is  a  call  upon  them  to  indem- 
nify the  trustee  ;  and  if  it  appears  that  trustees  have  committed 
a  breach  of  trust  under  cover  of  such  a  defence,  the  court 
shows  no  mercy .5  Therefore,  if  a  third  person  makes  a  claim, 
or  if  he  refuses  to  state  whether  he  has  a  claim,  where  the 
trustee  has  a  right  to  know,  the  trustee  may  bring  such  person 
before  the  court  by  bill ;  and  if  he  claims  improperly,  or  has 
improperly  refused  to  answer,  he  will  be  charged  with  the 
costs.^     So  where  the  equities  are  not  perfectly  clear,  the  trus- 

^  Angler  v.  Stannard,  3  My.  &  K.  56G ;  Dewey  v.  Thornton,  9  Hare, 
232;  Field  v   Donoughmore,  1  Dm.  &  W.  234. 

*  Miller  v.  Proetor,  20  Ohio  St.  4-i4. 

3  Leslie  V.  Baillie,  2  Y.  &  Col.  Ch.  91. 

*  See  Chrichton's  Trusts.  24  L.  T.  2G7 ;  In  re  Blitlmian,  L.  R.  2  Eq.  23; 
Re  Helhnatrs  Will,  L.  R.  2  Eq.  363. 

^  Lewin,  253  (oth  ed.). 

«  Re  Primrose,  23  Beav.  o'JO. 


564  DISTRIBUTION    OF   THE   TRUST    FUND.       [CHAP.  XXXII. 

tee  may  decline  to  act  without  the  sanction  of  the  court ;  and 
his  costs  and  proper  expenses  will  be  allowed.^  The  trustee 
himself  will  be  protected  by  the  decree  of  any  court  having 
jurisdiction,  and.  exercising  the  jurisdiction  regularly,  upon 
proper  notice  given  ;  -  but  if  he  appeals  from  such  decree  to  a 
higher  court,  he  may  be  compelled  to  pay  costs.^  If  other  par- 
ties appeal,  he  must  follow  the  case  wherever  it  is  carried,  and 
he  will  be  allowed  his  costs  and  expenses.  The  suit  in  such 
cases  may  be  instituted  by  the  trustee  himself  asking  for  the 
direction  of  the  court ;  or  parties  claiming  to  be  the  cestuis  que 
trust  may  institute  the  suit  against  the  trustee,  and  others 
claiming  to  be  the  cestuis  que  trust.  If,  at  the  hearing,  it 
appears  that  the  question  was  doubtful,  and  required  the  inter- 
position of  the  court,  all  parties  may  have  their  costs  out  of 
the  trust  fund,  although  the  decree  may  be  against  some  of 
them.^  But  if  parties  receive  the  money  who  are  not  entitled, 
they  are  not  protected,  although  the  trustee  paid  the  money 
to  them  under  a  decree  of  the  court,  and  is  protected  person- 
ally by  the  decree.  In  such  cases  the  party  really  entitled,  if 
he  was  not  a  party  to  the  previous  suit,  and  bound  by  the 
decree,  may  have  his  suit  against  the  person  to   whom  the 

1  Ante,  §  476  a;  Petition  of  Baptist  Church,  51  N.  H.  424;  Wheeler  v. 
Berry,  18  N.  H.  307;  Goodhue  v.  Clark,  37  N.  H.  531;  Att'y-Gen.  v. 
Moore,  4  C.  E.  Green,  503;  Vanness  v.  Jacobs,  2  Green,  153;  Wood- 
ruflf  0.  Cook,  47  Barb.  304 ;  Crosby  v.  Mann,  32  Conn.  482 ;  Tillinghast 
V.  Coggeshall,  7  R.  I.  383 ;  Wiswell  v.  First  Cong.  Church,  14  Ohio  St. 
928;  Talbot  v.  Radnor,  3  My.  &  K.  252;  Goodson  v.  Ellison,  3  Russ. 
683;  Knight  v.  Martin,  1  R.  &  M.  70;  Tanil.  237;  Angier  v.  Stannard, 
3  M.  &  K.  566;  Curteis  v.  Candler,  6  Mad.  123;  Campbell  v.  Home, 
1  Y.  &  Col.  Ch.  664 ;  Gardiner  v.  Downes,  22  Beav.  397 ;  Merlin  v.  Bla- 
grave,  25  Beav.  137;  Taylor  v.  Glanville,  3  Mad.  176;  Loring  r.  Steineman, 
1  Met.  207. 

2  Loring  v.  Steineman,  1  Met.  207;  Tucker  v.  Horneman,  4  De  G.,  M. 
&  G.  395;  Rowland  v.  ]\[organ,  13  Jur.  23. 

=•  Ibid. 

"  Westcott  V.  CuUiford,  3  Hare,  274;  Turner  v.  Franipton,  2  Coll.  336; 
Merlin  v.  Blagrave,  25  Beav.  134 ;  Boreham  v.  Bignall,  8  Hare,  134 ;  Lee 
V.  Delane,  1  De  G.  &  Sm.  1. 


§§  928,  929.]       DISTRIBUTION    OP    THE   TRUST   FUND.  665 

money  was  paid,  and  lie  will  be  held  as  a  quasi  trustee  in  favor 
of  the  person  who  shows  an  absolute  right  to  receive  the 
money.^ 

§  929.  A  trustee  may  pay  the  money  to  the  parties  entitled, 
or  to  an  agent  authorized  to  receive  it ;  and  such  authority 
need  not  be  shown  by  a  power  of  attorney,  nor  by  a  deed,  nor 
even  by  an  order  in  writing :  but  a  trustee  should  not  pay  over 
money  without  some  proof  in  writing,  signed  by  the  parties,  of 
the  authority  of  the  agent  to  receive  it.  So  the  trustee  must 
see  to  the  genuineness  of  the  authority  of  the  agent  to  whom 
he  pays  or  transfers  the  property  ;  for  if  there  is  forgery  or 
fraud,  or  want  of  authority  in  the  person  to  whom  the  property 
is  transferred,  the  trustee  will  be  responsible.^  If  the  cestui 
que  trust  is  abroad,  payments  are  generally  made  by  the  trustee 
to  an  agent  under  a  power  of  attorney ;  the  death  of  the  cestui 
que  trust  is  a  revocation  of  such  agency  or  power,  and  the 
trustee  is  personally  responsible  for  payments  made  afterwards, 
although  without  notice  of  the  death.  The  cestui  que  trust  may, 
how'ever,  direct  the  trustee  to  pay  to  a  particular  person  until 
further  orders ;  and  such  payments  will  be  good,  against  the 
representatives  of  the  cestui  que  trust,  until  notice  of  the  death 
is  given  to  the  trustee  :  ^  but  if  tlie  cestui  que  trust  is  a  tenant 
for  life  only,  such  payments,  made  after  his  death,  would  not 
be  good  as  against  the  remainder-man.*  Mr.  Lewin  suggests 
that  the  safe  course,  where  the  cestui  que  trust  is  abroad,  is  for 
the  trustee  to  remit  the  money  to  some  reliable  bank,  to  be 

1  Kettleby  v.  Lamb,  2  Ch.  R.  404;  O'Brien  v.  Grierson,  2  B.  &  B. 
328;  Farrell  v.  Smith,  2  B.  «&  B.  337;  Foster  v.  McMahon,  11  Ir.  Eq. 
308. 

2  Bostock  V.  Floycr,  L.  R.  1  Ch.  2(5;  Ashby  v.  Blackwell,  2  Ed.  209; 
Eaves  v.  Iliokson,  ."O  Beav.  136;  Sloman  v.  Bank  of  England,  14  Sim.  475; 
Harrison  v.  Pryse,  Barn.  324;  Kx  paric  J oWlR',  8  Beav.  1G8. 

^  Vance  u.  Vance,  1  Beav.  G05;  Harrison  v.  Ashcr,  2  De  G.  &  Sm.  43G ; 
Kiddill  V.  Farnelt,  3  Sim.  &  Gif.  428. 
*  Be  Jones,  3  Drew.  679. 


566  DISTRIBUTION    OF   THE   TRUST    FUND.       [CHAP.  XXXII. 

drawn  out  on  the  personal  checks  or  receipts  of  the  cestui  que 
trust}  The  difficulty  is  remedied  in  England  by  Lord  St. 
Leonard's  act,  which  makes  all  payments  by  the  trustee  to  a 
properly  authorized  person  good  and  valid,  in  the  absence  of 
any  notice  of  the  death  of  the  cestui  c^ue  trust.^ 

§  930.  Where  a  trustee  was  to  pay  a  small  sum  to  a  wnfe 
wlio  had  deceased,  the  court  ordered  it  to  be  paid  to  the  hus- 
band without  administration  ;  ^  and  so  where  the  trustee  was  to 
pay  a  small  sum  to  a  husband,  the  court  ordered  it  to  be  paid 
to  his  widow,  although  there  was  no  administration.'^  When 
the  sum  is  considerable,  the  court  will  not  hold  the  trustee 
justified  in  paying  it  over  without  administration,  in  case  the 
person  is  deceased,  to  whom  it  was  to  be  paid.^  So  if  the  trus- 
tee is  to  pay  to  an  infant,  a  guardian  must  be  appointed  to 
receive  it ;  but  if  an  infant  fraudulently  represents  himself  of 
age,  and  procures  the  money,  the  trustee  will  not  be  held  liable 
to  pay  it  again  when  the  infant  becomes  of  age.^  If  the  trustee 
is  to  pay  over  to  a  firm  or  partnership,  he  may  pay  to  the  sur- 
viving partner  or  partners  without  the  concurrence  of  the  legal 
representatives  of  a  deceased  partner,  although  it  is  better  to 
have  such  concurrence."  So  a  trustee  may  pay  over  to  a  single 
surviving  trustee,  although  the  court  in  the  exercise  of  its  dis- 
cretion does  not  order  such  payments  to  be  made.^ 

§  931.  If  a  trustee  by  mistake  pays  the  wrong  person,  and  is 
compelled  to  pay  again  to  the  proper  person,  the  court  will  not 

'  Lewin,  285. 

^  •2-2  &  23  Vict.  c.  35,  §  26. 

*  Hinniiigs  i-.  Hinnlngs,  2  Hem.  &  Mil.  32. 
■»  Lewin,  286. 

*  Lewin,  286. 

*  Overton  v.  Bannister,  3  Hare,  503 ;  Wright  v.  Snowe,  2  De  G.  &  Sua. 
321 ;  Nelson  v.  Stocker,  4  De  G.  &  J.  458. 

'  Phillips  V.  Phillips,  3  Hare,  289. 

*  Re  Dickinson's  Trust,  1  Jur.  (>'.  s.)  724. 


§§  929-932.]       DISTRIBUTION    OF   THE    TRUST    FUND.  567 

impose  interest.^  If  he  has  overpaid  a  particular  sum  to  a 
cestui  que  trust,  he  may  recoup  himself  out  of  any  other  interest 
of  that  cestui  que  trust  in  the  trust  funds  in  his  hands.^  Where 
a  trustee  had  paid  wrong  parties  upon  certificates  forged  by 
one  of  the  cesluis  que  trust,  the  court  ordered  the  wrong  parties 
to  repay  what  each  had  received,  and  also  ordered  the  fraudu- 
lent cestui  que  trust  to  make  up  to  the  parties  rightfully  enti- 
tled, to  the  relief  of  the  trustee,  what  should  not  be  repaid. ^ 
In  a  suit  against  a  trustee  for  breach  of  trust,  the  court  ordered 
a  tenant  for  life,  who  was  overpaid  by  the  breach  of  trust,  to 
pay  back  the  money  to  the  trustee,  without  the  institution  of 
another  suit  for  that  purpose.*  A  cestui  cjue  trust  may,  not- 
withstanding the  statute  of  limitations,  if  there  has  been  no 
improper  laches,  recover  from  another  cestui  que  trust  an  over- 
payment, erroneously  made  to  him  by  the  trustee." 

§  932.  But  if  an  executor  overpays  a  legatee,  the  court  will 
not  generally  order  him  to  refund,  but  will  leave  the  parties  to 
their  legal  rights  ;  ^  especially  if  the  executor  pays  voluntarily, 
and  in  spite  of  doubts  expressed  by  the  legatee.'  Nor  can  the 
court  order  a  purchaser  from  the  legatee  to  refund  .to  an  exec- 
utor, although  the  executor  may  be  liable  to  creditors.^  But 
an  executor  who  has  been  made  to  pay  a  creditor,  and  has 
under  his  control  a  legacy  appropriated  by  him  as  such,  and 
not  actually  paid  over,  may  be  allowed  to  recoup  the  debt  from 
such  legacy ;  ^  but  he  is  not  entitled  to  his  costs  for  obtaining 

'  Saltmarsli  v.  Barrett,  31  Beav.  349. 

'  Livesay  v.  Livesay,  3  Russ.  287;  Dibbs  v.  Goren,  11  Beav.  483. 

'  Eaves  v.  Hickson,  30  Beav.  136. 

*  Hood  V.  Clapham,  19  Beav.  90;  Baynard  v.  Woolley,  20  Beav.  oSo; 
Downs  V.  Hodgson,  25  Beav.  177;  Griffiths  v.  Porter,  25  Beav.  23(3;  Moore 
V.  Moore,  1  Coll.  54. 

*  Harris  v.  Harris,  29  Beav.  110. 

'  Downes  v.  Bullock,  25  Beav.  54;  Xeal  v.  Ma.\well,  40  Miss.  726. 
^  Bate  V.  Hooper.  5  De  G.,  M.  «&  G.  338. 
»  Noble  V.  Brett,  24  Beav.  499. 
»  Ibid. 


568  DISTRIBUTION    OF    THE    TRUST    FUND.       [CHAP.  XXXII. 

such  relief.^  A  creditor  who  is  not  barred  by  the  statute  of 
limitations,  or  to  whose  suit  the  statute  is  not  pleaded,  may 
recover  assets  from  a  legatee  to  whom  they  have  been  improp- 
erly paid  by  an  executor ;  ^  although  such  legatee  holds  in 
trust,^  but  he  cannot  recover  them  from  purchasers  for  value, 
as  from  persons  claiming  under  a  marriage  settlement.^ 

§  933.  The  costs  of  winding  up  a  trust  and  distributing  the 
money,  and  all  expenses  for  documents,  deeds,  and  other  papers, 
must  be  paid  from  the  trust  fund. 

1  Noble  V.  Brett,  26  Beav.  233. 

2  Fordham  v.  Wallis,  10  Hare,  217. 

3  Jervis  V.  Wolferstan,  L.  R.  18  Eq.  18. 

*  Dilkes  V.  Broadmead,  2  Gif.  113;  2  De  G.,  F.  &  J.  566. 


INDEX. 


[The  figures  refer  to  sections     All  before  473  are  in  Vol.  I. ;  all  after  472  are  in  Vol.  II.] 


ABANDONMENT, 

.   trustee  cannot  discharge  himself  by  abandoning  trust,  274. 
ABATEMENT.     See  Disskisin. 

adverse  holding  by  a  trustee  in  equity  equivalent  to,  864. 

what  is  necessary  to  establish  an,  863,  864. 

of  a  legacy  in  trust,  Bancroft  v.  Bancroft,  104  Mass.  226. 
ABATOR,  241.     See  Dlsskisor. 

not  bound  by  a  trust,  241. 
ABROAD.     See  Jurisdictio.v. 

payment  to  ceshti  que  trust  abroad,  how  made,  929. 

trust  in  personal  estate  abroad  may  be  enforced,  70. 

trusts  in  real  estate  abroad  may  be  enforced,  how,  71,  72. 

receiver  may  be  appointed  when  trustees  are,  818,  819. 

court  can  give  relief  between  husband  and  wife,  although  the  property 
is  abroad,  631. 

whether  a  trustee  being  abroad  is  cause  for  his  removal,  275. 
ABSENT  TRUSTEE.     See  Removal. 

whether  may  be  removed,  275,  276. 

how  far  a  suit  against  will  be  allowed  to  proceed,  878. 
ABSENT   CESTUI  QUE    TRUST.     See  Abroad. 

how  far  suits  against  may  proceed,  883. 

how  decrees  against  may  b^e  made  and  how  amended,  883. 
ABUSE, 

of  trust  confers  no  rights,  835. 

and  deprives  the  cestui  que  trust  of  no  rights,  835. 
ACCELERATION,  183. 
ACCEPTANCE   OF  TRUST.     See  Dlsclaimkr. 

not  necessary  of  implied  resulting  and  constructive  trusts,  259. 

no  one  compelled  to  accept  a  trust,  259. 

no  title  vests  until  acceptance,  259. 

an  acceptance  presumed  until  the  contrary  is  shown,  289. 


570  INDEX. 

ACCEPTANCE   OF   TRJJST,  — continued. 

not  to  object  is  to  accept,  259. 

to  act  is  to  accept,  260,  401. 

it  is  not  necessary  to  execute  a  deed  of  acceptance,  269. 

acceptance  by  deed  may  create  a  specialty  debt  in  case  of  breach  of 
trust,  2G0. 

but  not  if  there  are  no  covenants,  260. 

a  simple  acceptance  creates  only  a  simple  contract  debt  in  case  of 
breach,  260. 

what  acts  constitute  an  acceptance,  261,  401. 

acceptance  may  be  shown  by  parol,  261,  267. 

acts  tending  to  show  acceptance  may  be  explained,  261. 

if  the  acts  are  left  doubtful,  an  acceptance  will  be  presumed,  261,  267, 
401. 

a  trustee's  acts  may  be  explained,  261. 

mere  custody  of  deed  not  necessarily  an  acceptance,  261. 

what  is  an  acceptance  of  trusts  under  wills  at  common  law,  262. 

what  is  an  acceptance  under  the  probate  laws  of  the  United  States, 
262. 

whether  probate  of  the  will  and  qualification  as  executor  is  an  accept- 
ance of  a  trust,  262. 

as  to  whether  an  executor  is  acting  as  trustee,  262,  263. 

whether  the  executor  of  an  executor  or  trustee  becomes  a  trustee, 
264. 

acceptance  cannot  be  limited  to  a  particular  part  of  the  trust,  264- 
266. 

acceptance  implies  active  responsibilities,  266,  411. 

cannot  disclaim  after  acceptance,  268. 

what  is  acceptance  when  bonds  are  required,  262. 

acceptance  by  executor  of  trustee,  263. 

acceptance  by  mistake,  266. 

trustee  acting  in  some  things  cannot  protest  that  he  is  not  acting  gen- 
erally, 401. 

but  a  trustee  may  transmit  a  bill  of  exchange  to,  or  deposit  money 
with,  a  cotrustee  and  not  accept  the  trust,  402. 

when  acceptance  of  a  deed  is  presumed,  56,  593. 
ACCIDENT, 

a  conveyance  by,  may  create  a  constructive  trust,  184-186. 

a  trustee   responsible  for  a  loss    by,   occurring  during  a  breach  of 
trust,  847. 

trustee  not  liable  for  losses  by,  if  he  proceeds  regularly,  847. 
ACCOUNT, 

may  be  limited  to  the  time  of  filing  bill  as  a  penalty  for  delay  or 
laches,  230,  872. 

how  far  back  accounts  may  be  ordered,  863,  871,  872. 


INDEX.  •  571 

ACCOUNT,  —  continued. 

in  cases  of  express  trusts,  863. 

in  cases  of  fraud,  228,  229,  2:30. 

in  cases  of  delay  and  lathes  in  filing  a  bill,  2.D0,  872. 

trustee  must  keep  accurate  accounts,  821. 

all  persons  claiming  under  the  trustee  must  render  true  accounts,  821. 

for  what  trustees  must  account,  209,  427,  431,  454,  538,  787,  847. 

trustee  must  account  for  all  bonuses,  427,  429. 

and  for  all  moneys  paid  to  him  for  retiring  from  the  office,  427. 

proper  form  of  accounting,  4G8. 

how  interest  is  computed  in  trustee's  accounts,  468. 

for  all  profits  from  trade,  manufacturing,  or  speculation  in  which  the 

money  has  been  directly  or  indirectly  employed,  454. 
if  trustee  receives  usurious  interest,  he  must  account  for  it,  468. 
trustee  must  keep  an  account  of  his  expenses,  911. 
what  a  bill  for  an  account  must  allege,  890. 

how  an  account  must  be  stated  when  a  trustee  has  deposited  trust 
money  in  bank  mixed  with  his  own,  465. 
ACCOUNTANT, 

trustees  may  employ  an,  912. 
ACCUMULATION.     See  Perpetuity. 

trust  for  accunmlation  must  not  lead  to  a  perpetuity,  393. 

how  long  an  accuniulation  may  be  directed  at  common  law,  394. 

the  Thellusson  act,  394. 

construction  of  the  Thellusson  act,  395. 

construction  of  similar  legislation  in  the  United  States,  398. 

where  the  gift  to  accumulate  illegally  may  be  good,  and  only  the 

direction  to  accumulate  fails,  396. 
where  the  whole  gift  fails,  396. 
disposition  of  the  income  or  gift  when  it  fails  for  an  illegal  direction 

to  accumulate,  397. 
legislation  in  the  various  States  upon  the  subject,  398. 
accumulations  for  charitable  purposes,  399,  738. 
trusts  to  accumulate  for  raising  portions,  584. 
duty  of  trustees  when  an  accumulation  is  directed,  472. 
duty  of  trustees  to  accunmlate  an  infant's  income,  622. 
accumulation  will  cease  at  twenty-one,  622. 

whether  a  direction  to  pay  the  premiums  on  a  policy  of  insurance  for 
life  is  contrary  to  the  rules  against  accumulations,  400. 
ACKNO  WLEDGMENT, 

what  may  prove  a  trust,  82,  84. 
of  a  deed  by  a  married  woman  when  compelled,  48. 
ACQUIESCENCE, 

what  is,  467,  849,  853,  870. 

when  it  is  a  bar  lo  relief,  141,  467,  849,  853,  870. 


572  INDEX. 

ACQUIESCENCE,  —  continued. 

is  in  the  nature  of  an  estoppel,  849,  853,  870. 

persons  under  disability  cannot  acquiesce,  467,  849,  853,  867. 

nor  until  they  have  knowledge  of  the  act,  467,  850. 

in  an  illegal  investment,  467. 

acquiescence  in  illegal  investments  not  presumed  from  mere  lapse  of 
time,  467. 

mere  expression  of  opinion,  without  intention  that  a  trustee  shall  act 
on  it,  is  not  acquiescence,  467. 

a  married  woman  may  acquiesce  in  a  breach  of  trust  in  her  separate 
property,  669. 

acquiescence  by  a  cotrustee  in  a  breach  of  trust,  419. 
ACTION   AT  LAW 

to  recover  the  trust  estate  must  be  in  name  of  trustee,  17,  328,  520. 

to  be  defended  by  trustee,  328. 

to  recover  damages  for  trespass,  flowing,  taking  for  roads  and  other 
purposes,  to  be  in  name  of  trustee,  328,  520. 

when  the  action  may  be  in  name  oi"  cestui  que  trust,  17,  328,  520. 

when  trustee  cannot  release  or  discontinue,  520,  886,  900. 

such  release  may  be  set  aside,  520. 

trustee  may  require  indemnity  for  costs,  520,  886. 

cestui  que  timst  may  be  restrained  until  indemnity  is  given,  520. 

when  an  action  at  law  may  be  maintained  against  trustee,  17,  843. 

when  for  money  had  and  received,  843. 

cause  of  action  survives  to  the  surviving  trustee  and  to  his  executors 
or  administrators,  343. 
ADMINISTRATION, 

husband  entitled  to,  of  a  wife's  clioses  in  action,  626,  682. 

courts  may  order  small  sums  to  be  paid  without  administration,  930. 
ADMINISTRATORS.     See  Executors. 

when  constructive  trusts  arise  upon  their  contracts,  224,  228,  810,  811. 

cannot  deal  with  real  estate  without  license  of  court,  224,  225. 

•what  a  purchaser  from,  must  ascertain,  225. 

their  right  to  deal  with  personal  assets,  224,  225,  809,  814. 

cannot  sell  directly  or  indirectly  to  themselves,  224,  225. 

powers  of  administrators  with  the  will  annexed,  500. 

personal  property  of  the  last  surviving  trustee  comes  to  his  adminis- 
trator, 344. 

duties  of  administrators  in  case  of  trust  property  coming  to  them,  144. 

liability  of  coadministrators  for  each  other's  acts,  421,  526. 

administrators  with  the  will  annexed,  300. 
ADMISSION, 

what  is  a  sufficient,  in  an  answer  to  justify  an  order  of  payment  into 

court,  827. 
of  trust,  by  answer  in  chancery,  84. 


INDEX.  573 

ADULTERY, 

bars  a  wife's  right  to  a  settlement  out  of  her  life-estate,  634. 
ADVANCEMENT, 

purchase  in  the  name  of  wife  or  child  presumed  to  be  an,  143. 
by  father  in  his  own  and  his  child's  name,  145,  146. 
upon  successive  lives,  145,  146. 
in  the  name  of  himself  and  wife,  144. 
in  name  of  a  child  or  wife  and  a  stranger,  144. 
by  grandparent  in  name  of  grandchild,  144. 
by  person  in  loco  jyarentis  in  name  of  child,  144. 
in  name  of  an  illegitimate  child,  144. 
in  other  cases,  144. 
presumption  of  an  advancement  rebuts  the  presumption  of  a  resulting 

trust,  145. 
the  presumption  of  an  advancement  may  be  rebutted,  146,  147. 
what  may  rebut  such  presumj)tion,  146,  148. 
such  advancement  cannot  prevail  against  creditors,  149. 
whether  subsequent  creditors  can  defeat  the  advancement,  149. 
whether  trustees  can  make  an  advancement  to  an  infant  out  of  his 

estate,  612,  615,  617,  618,  619. 
not  allowed  if  there  is  a  limitation  over,  619. 
ADVANTAGE.     See  Pjjofit. 

trustee  can  derive  no  advantage  or  profit  from  his  office,  128,  129, 

196,  209,  427-4:52,  433-437,  471. 
all  the  power  and  influence  of  trustee  must  be  used  for  the  advantage 

of  the  estate,  427. 
trustee  cannot  buy  up  debts,  428. 

where  trustee  is  an  attorney,  banker,  broker,  partner,  or  other  busi- 
ness man,  429-432. 
if  trustee  commits  a  breach  of  trust,  it  is  immaterial  that  he  gains  no 

profit  by  it,  847. 
where  cestui  que  trust  dies  without  heirs,  434-437. 
ADVERSE  TITLE, 

trustee  cannot  set  up  a  title  or  claim  adverse  to  his  cestui  que  trust, 

433,  863,  864. 
if  he  has  an  adverse  claim,  he  should  resign,  863. 
qualifications  of  the  rule,  864. 
ADVERTISING, 

by  trustees  for  sale,  782. 
under  licenses  of  sale  by  courts,  782. 
ADVICE, 

of  counsel,  elfect  of,  901 ,  927. 
of  court,  riixht  of  trustee  to,  928. 
how  obtained,  928. 


574  INDEX. 

AGENT.     See  Resulting  Trust,  127,  129,  135. 

parol  proof  cannot  prove  a  resulting  trust  if  agent  uses  his  own  money 
in  purchase  of  property,  135. 

where  agent  convicted  of  perjury,  135. 

fraud  of  asicnt  affects  the  principal,  171,  180. 

contracts  hetween  principal  and  agent,  206. 

must  be  free  from  suspicion,  206. 

notice  to,  affects  principal,  222,  223,  259. 

agent  of  trustee  is  accountable  only  to  his  principal,  246,  813. 

but  he  may  make  himself  trustee  de  son  tort  and  accountable  to  cestui 
que  trust,  246,  813,  907. 

when  may  sue  in  his  own  name,  874. 

tenant  for  life  as  agent  of  trustees,  775. 

how  trustees  for  sale  may  act  by  agents,  775,  779. 

the  necessity  that  justifies  the  employment  of  agents  by  trustees,  404. 

trustees  need  not  take  security  from  agents,  404. 

the  employment  of  an  agent  not  a  delegation  of  the  trust,  409. 

husband  and  wife  may  be  agents  for  each  other,  678. 

where  one  fraudulently  professes  to  act  as  agent  for  another,  172. 

accountable  for  all  money  made  from  the  agency,  430. 

trustees  responsible  for  losses  by  criminal  acts  of  their  agents,  441. 
AGREEMENT, 

for  valuable  consideration  may  be  enforced  as  a  contract,  if  not  good 
as  a  trust,  95. 

an  agreement  without  consideration  to  make  a  declaration  of  trust  not 
good,  96. 

to  sell  creates  implied  trust,  112,  122,  231,  342. 

to  settle  lands  creates  implied  trust,  122. 

voluntary  agreement.     See  Voluntary  Trust  ;  Voluntary  Set- 
tlement. 
ALIEN.     See  Naturalization. 

may  create  a  trust,  36. 

to  what  extent  he  can  be  a  trustee  of  real  estate,  56. 

whether  he  can  take  by  devise  or  not,  56. 

cannot  plead  alienage  to  defeat  a  trust,  56. 

how  far,  may  be  cestui  que  trust,  64. 
ALIENATION.     See  Anticipation. 

of  an  equitable  estate  cannot  be  forbidden  under  the  form  of  a  trust, 
386,  671. 

except  in  trusts  for  married  women,  387,  670. 

estates  may  be  limited  over  upon  alienation  or  bankruptcy,  388,  555. 

such  limitations  are  valid,  388,  555. 

in  such  case  the  cestui  que  trust  loses  the  property,  388,  555. 

what  is  and  what  is  not  an  alienation  under  such  limitations,  388. 


INDEX.  675 

ALIENATION,  —  continued. 

how  trusts  may  be  made  inalienable,  118,  386  a,  38G  b,  555. 
ALLEGATIONS, 

what  allegations  should  "he  made  in  bills  for  diirerent  purposes,  890. 
ALLOWANCE, 

trustees  will  be  allowed  all  their  travelling  expenses,  910. 

and  fees  for  legal  advice,  910. 

all  expenses  for  litigation  properly  incurred,  910. 

for  all  salaries  paid  to  necessary  assistants,  912. 

for  all  losses  by  theft,  inevitable  accidents,  and  other  calamities,  if 

they  use  due  care,  914. 
for  all  disbursements  for  the  good  of  the  estate,  912,  915. 
or  for  the  support  and  protection  of  the  cestui  que  trust,  915. 
for  costs  of  suits,  910. 
and  for  time,  trouble,  and  skill,  918  n. 
practice  in  England  as  to  allowances  for  time  and  trouble,  432,  904, 

906,  916. 
the  English  rule  not  adopted  in  the  United  States,  916-918. 
■what  allowances  will  be  made  in  the  United  States  for  time,  trouble, 

and  skill,  918. 
such  allowance  usually  made  by  a  commission,  918  n. 
the  rate  of  such  commission  in  the  several  States,  918  n. 
how  such  commissions  are  computed,  918,  919. 
to  entitle  a  trustee  to  an  allowance  for  his  expenses  he  should  keep  an 

account  of  them,  911. 
allowances  where  a  fund  is  created  for  their  payment,  908. 
allowances  for  expenses  a  lien  upon  the  estate,  907. 
if  the  estate  insufficient,  cesttii  que  tnist  may  be  liable,  909. 
ANNUITIES. 

when  trustees  should  convert,  449,  547. 
whether  may  l)e  apportioned,  556. 
ANSWER   IN   CHANCERY, 

effect  of,  in  respect  to  the  statute  of  frauds,  81. 
the  entire  answer  must  be  read,  85. 

what  an  answer  must  contain  to  protect  a  boiiajide  purchaser,  219. 
disclaimer  of  trust  may  be  made  by,  271. 
how  a  married  woman  may  make,  654,  889. 
cotrustees  ousrht  to  join  in,  888. 
when  they  may  sever  in,  888. 
costs  of  answer,  898-900. 
ANTICIPATION.     See  Aliknation;  Perpetuities. 

in  trusts  for  married  women  may  be  restrained,  .'587,  646,  670. 
what  form  of  words  will  amount  to  a  restraint  upon,  670. 
and  what  not.  671. 
whether  restrained  or  not,  a  matter  of  intention,  670. 


576  INDEX. 

ANTICIPATION,  —  continued. 

restraint  upon,  applies  to  both  real  and  personal  estates,  671. 

but  the  estates  are  subject  to  paramount  equities,  671. 

restraint  upon,  continues  only  during  coverture,  671. 

restraint  upon,  is  ambulatory,  671. 

effect  of  restraint  upon,  671. 
APPEAL, 

if  a  trustee  appeals  from  the  decree  of  a  court  having  jurisdiction,  he 
may  be  compelled  to  pay  costs,  928. 

appeal  by  other  parties,  928. 
APPENDANT  POWERS,  503,  765.     See  Powers. 
APPLICATION  OF  PURCHASE-MONEY.     See  Trustees' Receipts. 

prima  facie,  purchaser  must  see  to,  790. 

reasons  of  the  rule,  790. 

circumstances  that  control  the  rule,  791-795. 

controlled  by  the  terms  of  the  trust,  791. 
by  the  words  of  a  power,  792. 
by  an  implied  intention,  793,  794,  799. 
by  a  direction  to  pay  debts  generally,  795,  797. 

the  intention  is  implied  at  the  date  of  the  instrument,  801. 

in  case  of  charges  upon  an  estate,  who  can  sell  and  who  can  sign 
receipts,  and  who  must  see  to  the,  802-805. 

purchaser  need  not  see  to  the  application  of  the  purchase-money  of 
personal  estate  sold  by  executors  or  administrators,  809-814. 

in  case  of  fraud  or  collusion,  809-814. 

purchasers  under  assignments  for  creditors  need  not  see  to  the  appli- 
cation of  the  purchase-money,  598. 
APPOINTMENT   OF  TRUSTEES.     See  Nkw  Trustees. 

considerations  that  govern  the  court  in  appointing  trustees,  39,  277. 

proceedings  for,  in  court,  282-293. 

who  may  originate  proceedings,  282. 

who  should  have  notice,  282. 

when  all  parties  are  sui  juris,  283. 

when  guardians  of  minors  should  be  appointed,  282. 

when  appointment  is  completed,  284. 

what  conveyances  and  orders  are  necessary  to  complete,  284. 

form  of  a  power  of,  288  n. 

importance  of  a  power  of,  288. 

power  of  appointment  cannot  be  delegated,  287. 

power  of,  must  be  strictly  followed,  288. 

when  power  of,  may  be  exercised,  288-293. 

by  whom  power  of,  may  be  exercised,  294—297. 

what  number  should  be  appointed,  275,  286. 

when  suit  is  ponding,  292. 

regularity  of  appointment  will  not  be  inquired  into  collaterally,  275. 


INDEX.  577 

APPOINTMENT  OF  TRUSTEES,  — contimied. 

appointment  stands  until  reversed,  275. 
APPORTIONMENT, 

of  income,  rents,  annuities,  interest,  dividends,  &c.,  556. 

of  purchase-money,  773. 

of  income  upon  a  sale  for  investment,  554. 

trustees  may  apportion  their  duties,  but  cannot  delegate  them,  408, 

417. 
when  a  tenant  for  life  is  entitled  to  a  proportion  of  the  proceeds  of  a 
sale  of  an  estate  upon  which  he  has  made  permanent  repairs,  653. 
APPROPRIATION, 

of  legacy  by  executor  or  trustee  without  suit,  480. 
ARBITRARY   PO\yERS,  506.     See  Powers. 
ARREARS, 

trustees  must  not  allow  rent  to  be  in  arrears,  527. 

second  tenant  for  life  not  obliged  to  pay  arrears  of  interest,  554. 

arrears  of  income  of  a  married  woman's  separate  property  belong  to 

her  or  go  with  the  principal,  31,  664. 
but  arrears  of  pin-money  go  to  husband,  32,  664. 
when  trustees  are  liable  for  arrears  of  rent,  527. 
if  tenant  for  life  is  insolvent,  trustee  may  release,  528. 
arrears  may  be  assigned,  although  there  is  a  provision  against  antici- 
pation, 388. 
ARTICLES,   MARRIAGE.    See  Executory  Trusts. 
ASSETS, 

assets  not  marshalled  in  favor  of  charities,  740. 

as  to  marshalling  assets  for  payment  of  debts  in  trusts  under  a  will, 

559-567. 
as  to  marshalling  assets  for  payment  of  legacies,  573. 
personal  assets  must  be  first  applied  to  the  payment  of  debts,  571. 
ASSIGNS, 

whether  the  word  assigns  in  a  limitation  enables  an  assignee  or  devi- 
see to  execute  a  trust,  294,  340. 
whether  assigns  can  execute  powers  or  not,  294,  494,  495,  503,  504. 
ASSIGNEE, 

of  a  bankrupt  cannot  purchase  the  estate,  209. 

bound  by  the  trust,  345,  346. 
whether  the  assignees  of  a  tenant  for  life  take  any  thing,  and  what, 
555. 
ASSIGNMENT, 

in  trust  for  creditors,  585-602. 

a  trust  estate  does  not  pass  under  general  words  of,  336,  345. 

cestui  qne  trust  who  has  made  an  assignment  of  his  interest  need  not 

be  made  a  party,  882. 
whether  an  assignment  is  complete  without  notice,  438. 
VOL.  II.  37 


578  INDEX. 

ASSIGNMENT,  —  continued. 

general  assignment  by  one  partner  •will  not  pass  partnership  assets, 

599. 
a  general  assignment  by  husband  will  not  pass  a  wife's  choses  in 
action,  641. 
ATTENDANT  TERMS, 
trustees  of,  524. 
duties  of  trustees  of,  524,  525. 
ATTORNEY, 

contracts  between  attorney  and  client,  202,  203. 

rules  respecting,  202,  203. 

may  receive  gifts  by  will  from  client,  202. 

all  dealings  between  attorney  and  client  will  be  carefully  investigated, 

202,  205. 
clerks  of  attorneys  labor  under  the  same  disabilities,  203. 
attorney  who  is  trustee  cannot  charge  for  professional  services,  429, 

432. 
an  attorney  advising  a  breach  of  trust  may  be  struck  from  the  rolls  of 

the  court,  846. 
so  if  he  is  trustee  he  may  be  struck  fi-om  the  rolls  for  a  wilful  breach, 
846. 
ATTORNEY-GENERAL.     See  Charitable  Use. 

may  maintain  bills  or  informations  to  establish  charities,  732,  744. 

or  to  correct  abuses  of  them,  732,  744. 

if  the  trust  is  not  a  public  charity,  the  attorney-general  cannot  intei'- 

fere,  732. 
attorney-general  cannot  generally  interfere  in  relation  to  the  church 
edifices  in  the  United  States,  732. 
AUCTION, 

whether  trustees  for  sale  must  sell  at,  780,  781. 

trustees,  executors,  and  other  fiduciaries,  cannot  purchase  the  prop- 
erty of  the  wards  at,  205. 
AUGMENTATION, 

of  trust  fund.     In  re  Curteis's  Trust,  L.  R.  14  Eq.  217. 
AUTHORIZE  AND   EMPOWER.     See  Implied  Trust. 
AUTHORITY, 

a  bare  authority  given  to  several  ceases  upon  the  death  of  one,  414, 
an  authority  given  to  the  office  survives,  414. 
so  an  authority  coupled  with  an  interest  survives,  414. 
or  coupled  with  a  duty  to  be  performed,  414. 
AVERMENT, 

trusts  in  their  nature  averrable  at  common  law,  75. 
no  averments  of  trust  can  be  made  upon  a  devise,  94. 


INDEX.  579 


B. 


BAILIFF, 

trustees  may  employ,  912. 
BANK, 

trustees  must  not  deposit  money  in,  to  their  own  credit,  443. 

deposits  in,  must  not  be  under  the  control  of  a  third  person,  443. 

cotrustees  must  not  deposit  money  to  the  sole  credit  of  one,  419. 

whether  bank-notes  have  ear-marks,  837. 

■when  the  trustee  will  be  liable  for  failure  of,  443-445. 

plate,  stocks,  and  bonds  may  be  placed  in,  442. 

money  may  be  paid  at  a  distance  tlirough  a  bank,  but  the  draft  must 
be  in  the  name  of  the  trustee,  406. 
BANKER.     See  Bank. 
BANKRUPT, 

in  what  property  may  create  a  trust,  37. 

may  be  a  trustee,  58. 

■whether  a  bankrupt  trustee  is  removable,  279,  292. 
BANKRUPTCY, 

of  trustee,  whether  a  cause  of  removal,  279,  292. 

whether  bankruptcy  is  an  alienation,  388,  555. 

property  may  be  limited  to  one  until  bankruptcy,  388,  555. 

whether  the  bankruptcy  of  cestui  (lue  trust  vests  his  equitable  interest 
in  assignees,  386,  555. 

a  general  assignment  for  creditors  is  an  act  of  bankruptcy,  587. 

bankruptcy  does  not  affect  vendor's  lien,  231. 

all  the  trustees  must  join  in  proving  a  debt  in  bankruptcy,  412. 

what  are  acts  of  bankruptcy,  587. 

general  assignments  for  creditors,  587. 
BAR, 

time  not  a  bar  to  a  direct  trust,  228,  745,  863. 

in  charitable  trusts,  745. 
BARGAIN  AND   SALE. 

operation  of  deed  of,  302. 
BENEVOLENCE,  711,  712  and  n. 
BESEECHING,  112,  114. 

See  Implied  Trust. 
BID, 

the  highest  bid  by  letter  is  valid  in  auction  sales,  780. 
BILL  IN  EQUITY, 

what  allegations  against  a  trustee  a  bill  should  contain,  890. 

parties  to.     See  Parties. 
BONA   FIDE  PURCHASER, 

who  is,  217-219,  239,  828,  834. 


580  INDEX. 

BOND, 

where  bond  is  required  of  trustee,  262,  822. 

neglect  to  give  bond  a  refusal  of  the  trust,  262. 

whether  bond  of  executor  is  security  for  his  acts  as  trustee,  262. 

liability  for  breaches  of  trust  where  a  bond  is  given,  426. 

liability  of  cotrustees  in  case  of  a  joint  bond,  426. 

cotrustees  may  give  separate  bonds,  426. 

liability  of  cotrustees  under  separate  bonds,  426. 

estate  of  a  deceased  trustee  not  liable  under  a  joint  bond  for  breaches 

of  trust  after  his  death,  343,  426. 
suit  and  judgment  upon  trustees'  bonds  do  not  give  them  a  right  to 

the  trust  property,  401,  812. 
BONDHOLDERS,   TRUSTEES   FOR, 

general  form  and  character  of  such  trusts,  749. 

general  duties  of  such  trustees,  749,  760. 

similar  to  the  duties  of  other  trustees,  749,  760. 

general  forui  of  such  trusts  in  England,  750-752. 

where  corporations  will  be  liable  to  suits,  752. 

where  a  person  holding  security  as  a  mortgage  for  an  indebtedness, 

assigns  a  part  of  the  debt,  753. 
he  becomes  a  constructive  trustee  for  the  owners  of  the  debt  or  debts, 

753. 
such  mortgages  and  trusts  not  within  the  statutes  in  various  States  in 

relation  to  trusts  for  bondholders,  753. 
the  power  of  corporations  to  make  mortgages,  754-757. 
what  propei'ty  may  be  mortgaged,  755-758. 
whether  a  corporation  can  mortgage  its  franchise,  756,  757. 
legislative  power  to  make  a  mortgage  need  not  be  contained  in  a 

charter,  758. 
■what  property  may  be  embraced  in  a  mortgage,  759. 
after-acquired  property,  759. 
hoAv  trustees  may  enforce  the  mortgage,  761. 
where  it  is  a  mere  trust  for  sale,  761. 
how  they  may  foreclose  a  mortgage,  761. 
where  trustees  take  possession  of  a  railroad  to  foreclose  a  mortgage 

and  operate  the  road,  they  will  be  liable  as  common  carriers,  762. 
if  trustees  accept  the  trust,  they  must  perform  their  duties,  763. 
courts  will  sustain  reasonable  arrangements  made  by  them,  763. 
BOOKS, 

trustee  must  keep  books  of  account,  821. 

trustee  must  produce  his  books,  821. 

must  produce  his  private  books,  if  the  trust  accounts  are  entered  in 

them,  821. 
and  the  books  of  a  firm  of  which  he  is  a  member,  if  the  accounts  are  in 

them,  821. 


INDEX.  581 

BOOKS,  —  continued. 

when  an  agent  is  employed  who  keeps  the  accounts  of  several  trusts 

in  the  same  books,  821. 
BORROWER  OF  THE   TRUST   FUND, 

in  breach  of  the  trust,  is  responsible  to  the  cestui  que  trust,  832. 
cannot  plead  the  statute  of  limitations  against  cestui  que  trust,  832. 
whether  he  can  safely  pay  it  back  to  trustee,  926. 
BREACH  OF  TRUST.     See  Charitable  Tkust;  Cestui  que  trust; 

Follow  ;    Injunction  ;    Payment    into    Court  ;    Receiver  ; 

Remedies;  Limitations,  Statute  of. 
personal  action  against  trustees  for,  843,  84:8. 
waiver  of,  850,  853.     See  AVaiver. 
acquiescence  in,  467-850.     See  Acquiescence. 
concurrence  in,  849,     See  Concurrence. 
release  of,  851.     See  Release. 
remedies  for,  816-848. 
when  it  creates  a  specialty  debt,  260. 
courts  will  not  enforce  sales  in,  787. 

attorney  advLsing  may  be  struck  from  the  rolls  of  the  court,  846. 
what  is,  438,  472,  622,  624,  816,  818,  821,  826,  828,  844,  845,  847. 
sale  of  trust  property  by  trustee  in  breach  of  trust  will  convey  the 

legal  title,  334,  335. 
breaches  of  trust  after  the  death  of  a  cotrustee  cannot  be  charged  upon 

his  estate,  343,  426. 
an  heir  not  liable  personally  for  breaches  of  trust  before  the  property 

descends  to  him,  344. 
a  delegation  of  the  trust  to  a  stranger,  or  to  cotrustee,  may  be  a 

breach  of  trust,  402,  408. 
but  to  transmit  a  bill  of  exchange  to  a  cotrustee  or  deposit  money 

with  a  cotrustee  is  not  an  acceptance  and  breach  of  the  trust,  422. 
not  a  breach  of  trust  in  trustees  to  follow  the  directions  of  the  settlor 

in  employing  other  persons,  403. 
it  is  not  a  breach  of  trust  to  pay  over  money  to  one  wlio  has  a  right  to 

receive  it,  403. 
breaches  of  trust  from  trustees  not  getting  possession  of  trust  prop- 
erty, 438. 
or  from  not  collecting  debts  or  selling  stocks,  439. 
or  enforcing  personal  security,  440. 
or  from  negligence  in  the  custody  of  the  property,  441. 
or  from  depositing  money  in  bank  in  their  own  names,  443-445. 
or  in  leaving  it  in  bank  too  long,  443,  446. 
breach  of  trust  for  not  renewing  leases,  534. 
or  for  renewing  in  trustee's  own  name,  538. 
BROKER, 

who  is  trustee  cannot  make  a  profit,  430-432, 


582  INDEX. 

BUYING  IN, 

trustees  cannot  buy  in  debts,  428. 
BY-LAWS, 

corporations  as  trustees  having  power  to  make  by-laws  cannot  alter 
the  trust,  734. 

c. 

CAPRICE,  777. 

a  trustee  acting  from,  may  be  compelled  to  pay  costs,  777,  900. 
CESTUI  QUE  TRUST, 

may  be  trustee  for  himself  and  others j  71. 

who  may  be,  60. 

all  persons  capable  of  taking  the  legal  title  may  be,  60. 

in  charitable  trusts  cestui  que  trust  need  not  be  capable  of  taking 
legal  title,  66. 

the  crown  or  king  may  be,  61. 

a  State,  or  the  United  States  may  be,  62. 

corporations  may  be,  63. 

corporations  cannot  be  cestuis  que  trust  where  they  are  forbidden  to 
take  the  legal  title,  63. 

same  rule  applies  to  aliens,  64. 

and  to  other  persons  forbidden  by  law  to  take,  65. 

how  far  aliens  may  be  cestuis  que  trust,  64. 

unborn  children  may  be,  66. 

illegitimate  in  esse  may  be,  66. 

but  not  thereafter  to  be  begotten,  66. 

certainty  in  cestui  que  trust,  66. 

may  purchase  the  trust  property,  199. 

he  alone  can  avoid  a  contract  with  the  trustee,  198. 

rights  of.     See  Remainder-man  ;  Tenant  for  Life. 

right  to  an  injunction.     See  Injunction. 

removal  of  trustee.     See  Removal  of  Trustees. 
receiver.     See  Receiver. 

follow  trust  fund  when  disposed  of  in  breach  of  the  trust,  217, 
230,  828-842. 

may  follow  the  trust  fund  into  the  hands  of  those  who  take  it  without 
consideration,  217,  225,  828. 

or  with  notice  of  the  trust,  217,  225,  828. 

a  pui'chaser  without  notice  from  a  purchaser  with,  217,  219,  828. 

a  purchaser  with  notice  from  a  purchaser  without,  217-219,  228. 

right  to  follow  clioses  in  action,  831.     See  Choses  in  Action. 

may  follow  the  fund  although  the  equities  are  doubtful,  if  the  pur- 
chaser had  notice,  838,  834. 


INDEX.  •         683 

CESTUI  QUE   TRUST,  — continued. 

may  follow  the  trust  fund  into  other  property  in  the  hands  of  the 
trustees,  855. 

into  the  hands  of  a  borrower,  836. 

how  he  may  identify  the  property,  127,  128,  837,  841. 

how  may  trace  or  identify  the  fund,  127,  128,  837,  841. 

parol  evidence  competent,  226,  839. 

cestui  que  trust  has  a  lien  upon  property  purchased  in  the  name  of 
trustee  with  trust  funds,  227,  842. 

when  he  may  take  the  property  or  the  money  with  interest,  842. 

right  of  personal  action  against  trustee,  843. 

whether  by  action  at  common  law  or  in  equity,  843. 

may  compel  trustee  to  replace  trust  property,  844. 

for  what  trustees  will  be  responsible  to  cestui  que  trust,  845,  847. 

rights  of  cedui  que  tnist  against  third  persons,  846,  848. 

right  to  pursue  trustees  jointly  or  severally,  848. 

where  cesluis  que  trust  concur  in  a  breach  of  the  trust,  467,  849. 

or  acquiesce,  467,  850. 

or  release,  467,  851,  852. 

or  waive,  467,  853. 

right  of  cestui  que  trust  to  remove  trustees,  292. 

right  of  one  of  the  cestuis  que  trust  to  be  appointed  trustee,  297. 

where  a  cestui  que  trust  must  prove  his  claim  against  a  trustee  in 
bankruptcy,  345. 

remedy  oi  cestui  que  trust  against  a  disseisor,  346. 

upon  the  death  of  cestui  que  ti~ust  without  heirs  the  equitable  estate 
belongs  to  the  State  as  ultimate  heir,  436,  437. 

infant  cestuis  que  trust  have  the  same  remedies  as  adults,  621. 

infants  cannot  waive,  concur  in,  or  release  breaches  of  trust,  837. 

but  they  cannot  procure  breaches  of  trust  by  fraud  and  have  a  rem- 
edy, 624. 

right  of  cestui  que  trust  to  interest,  468,  472. 

to  compound  interest,  472, 
CHANCERY,  3,  13,  17. 
CHARGE, 

where  property  is  conveyed  in  trust  to  accomplish  or  defray  a  par- 
ticular purpose  or  charge,  a  resulting  trust  will  arise  in  the  remain- 
der, 152. 

but  if  the  conveyance  is  subject  to  a  charge,  the  grantee  will  take  the 
remainder  beneficially,  152. 

who  may  sell  and  sign  receipts  when  charges  are  made  upon  estates 
by  a  testator,  802-805. 
CHARITABLE   USES  OR    TRUSTS, 

what  are  embraced  under,  687. 

general  remarks  upon,  687. 


584  INDEX. 

CHARITABLE  USES  OR  TRUSTS,  — continued. 

origin  of  the  law  and  practice  of,  688. 

practice  under  the  civil  law,  690. 

early  history  of  the  law  of,  689. 

whether  the  law  of,  wa's  derived  from  the  civil  law,  690. 

effect  of  the  Reformation  upon,  691. 

legislation  after  the  Reformation  upon,  691. 

statute  of  43  Eliz.  c.  4,  692. 

abstract  of  the  statute,  692  and  n. 

construction  of  the  statute,  693-696. 

practice  before  the  statute,  693,  694. 

jurisdiction  in  chancery  over,  before  the  statute,  694,  695. 

statute  did  not  give  nor  oust  the  jurisdiction  of  chancery  over,  694, 
695. 

statute  established  a  test  of,  696. 

authorized  a  commission,  696. 

and  repealed  statutes  of  mortmain,  696. 

definitions  and  descriptions  of,  697,  710,  711. 

a  general  public  benefit  necessary  to,  710. 

whether  the  idea  of  Christianity  is  involved,  697,  748,  n.  Penn. 

bequests  to  the  poor,  698. 

construction  of  bequests  for  the  poor,  698. 

what  gifts  for  the  poor  are  charitable,  699. 

gifts  for  poor  relations,  how  construed,  699. 

gifts  for  educational  purposes  charitable,  700. 

gifts  for  religious  purposes  charitable,  701. 

what  are  religious  purposes  and  what  not,  701-703. 

gifts  for  general  public  purposes  and  for  public  utility,  ease,  or  con- 
venience charitable,  704. 

what  are  such  gifts,  704. 

gifts  for  other  purposes,  charitable,  705. 

bequests  for  tombs,  monuments,  &c.,  charitable,  706. 

source  of  funds  for,  immaterial,  707. 

institutions  or  works  endowed  by  the  State  and  governed  by  laws  and 
State  officers  or  agents,  not  charitable,  707. 

American  courts  cannot  administer  all,  708. 

rules  that  govern  courts  in  construing,  709. 

will  be  established  when,  709. 

must  embrace  some  general  public  good,  and  not  a  benefit  for  a  few 
particular  people,  710. 

gifts  not  charitable,  710. 

where  gifts  are  made  for  charitable  purposes,  and  for  other  purposes 
not  charitable,  711. 

gifts  for  charitable  purposes  must  be  under  the  control  of  courts, 
711. 


INDEX.  585 

CHARITABLE   USES  OR  TKrSTS,  —  coniimted. 

courts  cannot  administer  gifts  for  benevolent,  liberal,  or  generous 
purposes,  711. 

gifts  for  private  charity,  712. 

the  word  benevolent,  712  and  n.,  713. 

when  the  gift  is  too  general,  vague,  and  indefinite,  courts  cannot 
administer  it,  713. 

where  courts  will  divide  the  fund  on  the  maxim  that  equality  is  equity, 
714. 

a  gift  contrary  to  law  or  public  policy  cannot  be  good  as,  715, 

illustrations,  715. 

no  such  thing  as  a  superstitious  use  in  the  United  States,  715. 

no  statutes  of  mortmain  in  the  United  States,  except  Xew  York  and 
Pennsylvania,  715  and  n. 

the  certainty  required  in,  716, 

courts  will  apply  rules  adapted  to  the  subject  in  administering,  716. 

the  application  of  the  doctrine  of  cy  pres  in  the  United  States,  717. 

the  chancellor  exercised  a  judicial  and  a  ministerial  power  in  estab- 
lishing charities  in  England,  718,  719,  722. 

origin  of  the  confusion  and  misapprehension  which  exists  upon  the 
doctrine  of  cy  pres,  718,  719,  727. 

courts  cannot  administer  gifts  to  charity,  religion,  or  education  gen- 
erally, without  a  trustee,  719,729. 

gifts  to  trustees,  to  be  by  them  applied  to  charitable  purposes  gen- 
erally, can  be  administered,  720,  721. 

whether  trustees  of  a  general  charity  appointed  by  the  court  can 
exercise  the  powers  of  trustees  appointed  by  the  donor,  721. 

if  a  testator  makes  a  gift  to  a  particular,  specific,  or  certain  charity, 
but  appoints  no  trustee,  or  the  trustee  fails,  courts  will  appoint, 
722,  731. 

in  all  these  cases  there  is  no  application  of  the  doctrine  of  cy  pres, 
722. 

cy  pres  a.s  a  judicial  doctrine  is  a  rule  of  construction  and  not  of 
administration,  723-728. 

cases  where  it  may  be  legitimately  applied  as  a  judicial  rule  of  con- 
struction, 723-727,  and  notes, 

if  the  purposes  of  a  charity  fail,  and  by  the  rules  of  construction  no 
other  purpose  can  be  ascertained  cy  jjres,  the  charity  must  fail,  723, 
726. 

what  corporations  or  societies  can  take  donations  for  charitable  pur- 
poses, 730. 

whether  court  can  appoint  trustees  to  administer  charities  when  none 
are  appointed  by  donors,  731. 

uncertainty  cannot  defeat  a  charitable  gift,  if  there  are  trustees  to 
reduce  it  to  certainty,  731,  732. 


586  INDEX. 

CHARITABLE  USES  OR  TRUSTS,  — coniinued. 

or  if  trustees  can  be  appointed  with  power  to  reduce  it  to  certainty, 

732. 
bow  remedies  may  be  sought  for  breach  of  charitable  trusts,  732, 

744. 
attorney-general  may  maintain  bill  to  establish  charities  or  to  correct 

the  administration  of,  732. 
church  lands  and  edifices  not  subject  to  the  rules  that  govern  charities, 

732. 
a  charitable  bequest  cannot  be  altered  or  perverted,  733,  734. 
a  gift  for  religious  purposes  generally  applied  to  sustain  the  doctrines 

of  the  donor,  733. 
how  such  gifts  will  be  administered,  733,  734. 
when  a  religious  society  may  change  the  use  of  the  funds  given  to  it 

generally,  734. 
the  trustees  of  a  charitable  fund  cannot  be  changed  for  convenience 

by  agreement,  735. 
for  what  reasons  the  trustees  of  a  charity  may  be  removed,  735. 
charities  not  subject  to  the  rules  against  perpetuities  and  accumula- 
tions, 736-738. 
if  a  gift  for  charity  once  vests  in  trustees,  all  illegal  directions  and 

conditions  fall  away  and  become  of  no  effect,  738. 
courts  will  not  aid  defective  conveyance  to,  739. 
nor  marshal  assets  for,  740. 
bequests  for  charitable  purposes  may  be  paid  over  to  trustees  in  a 

foreign  jurisdiction,  741. 
the  Smithsonian  Institution,  741. 

when  the  trustees  of  a  charity  obtain  an  act  of  incorporation,  742,  743. 
the  visitatorial  office  and  power,  742,  743. 

no  resulting  trust  for  heir  upon  the  breach  of  a  charitable  trust,  744. 
statute  of  limitations  as  affecting  charities,  745. 
the  effect  of  a  long-continued  use,  745. 
pleading  in  charity  suits,  746. 
no  formality  required,  746. 
practice,  746. 
costs  in  such  suits,  747. 

the  law  of  the  several  States  remarked  upon  and  cases  cited,  748,  note. 
no  trust  results  from  gifts  to  charitable  uses,  156,  723,  726. 
trustees  of  charities  may  act  by  majority,  413. 
may  appoint  their  successors,  287. 
CHARTER, 

to  charitable  institutions,  effect  of,  742,  743. 
CHATTELS, 

trust  in  chattels  real  must  be  proved  by  writing,  86.  ' 

in  chattels  personal  by  parol,  86. 


INDEX. 


587 


CHILD, 

purchase  by  parent  in  the  name  of,  an  advancement,  143-149,  201. 
must  be  some  proof  of  fraud  to  impeach  a  conveyance  to  parent  by 

child,  201. 
cannot  wait  until  parent's  death  to  impeach  such  conveyance,  201. 
purchase  in  the  name  of,  an  advance,  not  a  resulting  trust,  143,  144, 

145,  148. 
but  may  be  controlled  by  evidence,  145. 
CHILDREN, 

when  they  include  grandchildren,  251,  254. 
CHOSE  IN  ACTION, 

may  be  assigned  in  trust,  68. 

purchaser  of,  takes  the  title  only  that  the  vendor  had,  831. 
whether  notice  should  be  given  of  an  assiginnent  of,  438. 
right  of  a  husband  in  his  wife's  chases  in  action,  626. 
CHRISTIANITY,  687-691,  697,  701,  748  n.,  Penn. 

See  Charitable  Uses. 
CHURCH   EDIFICES, 

the  anomalous  title  and  ownership  of,  in  the  United  States,  732. 
CHURCH   WARDEN,  730. 
CIRCUITY, 

trustees  may  waive  mere  formalities  to  save  circuity,  476. 
CLAIM, 

trustees  cannot  set  up  a  claim  adverse  to  the  estate  of  the  cestui  que 

trust,  433,  863. 
how  trustee  can  make  a  claim,  863,  864. 
CLASS, 

implied  trusts  for  a  class,  250-252. 
where  powers  are  given  to  a  class,  499. 
presumption  of  a  release  by  a  class  is  weaker,  867. 
CLERK, 

whether  purchase  by,  with  pilfered  money  creates  a  resulting  trust, 
128,  135. 
CLIENT.     See  Attorney. 
COADMINISTRATORS.     See  Coexecutors. 
COEXECUTORS.     See  Cotrustees. 

power  of  each  coexecutor  over  the  estate ;  not  liable  for  each  other's 

acts,  421-426. 
need  not  sign  receipts  like  trustees,  421. 
the  power  of  each  over  the  estate,  421. 
if  executors  join  in  receipts  they  become  liable,  though  they  did  not 

receive  any  of  the  money,  421. 
what  acts  of  negligence  or  collusion  will  make  coexecutors  liable  for 

the  acts  of  others,  421-425. 
where  they  give  joint  bonds  to  the  Probate  Court,  426. 


588 


INDEX. 


COLLATERAL  POWER,  765. 

See  Powers. 
COLLECTION, 

duty  of  trustees  to  make  collection  of  all  personal  securities,  438,  440. 

what  diligence  necessary,  438,  440. 

what  delay  will  render  them  liable,  440. 

construction  of  express  directions  as  to  collection,  440. 
COMMISSION, 

what  commissions  trustees  may  receive  as  compensation  for  services 
in  the  United  States,  917,  918,  919  and  n. 

the  rules  in  the  several  States,  918,  note. 
COMMITTEES  OF   LUNATICS, 

cannot  purchase  his  property,  209. 

nor  make  a  profit,  432. 
COMMON   CARRIERS,  763. 

See  Trusteks  for  Bondholders. 
COMMON-LAW   COURTS,  17,  843. 

whether  cestui  que  trust  can  maintain  actions  against  trustees  in,  17, 
843. 
COMPANY, 

trustees  of  a  trading  company,  486. 
COMPENSATION, 

of  trustees,  904-919. 

trustees  cannot  receive  compensation  in  their  business  or  professional 
capacities  for  services  rendered  to  the  trust  estate,  432. 
COMPLICATED, 

courts  of  equity  may  have  jurisdiction  over  complicated  accounts 
arising  out  of  a  legal  title  or  claim,  871. 
COMPOUND   INTEREST.     See  Interest. 

when  trustees  will  be  charged  with,  471,  472. 
COMPOUNDING.     See  Compromise. 
COMPROMISE, 

power  of  trustees  to  compromise  with  debtors,  482. 

must  show  that  they  could  not  get  the  whole,  and  that  they  got  all 
they  could,  440. 

a  conveyance  to  compromise  claims  will  be  sustained,  185. 

fraud  in  compromise,  212. 
CONCEALMENT.     See  Constructive  Trust. 

when  a  constructive  trust  will  arise  from,  177-180. 

by  an  agent,  206. 

concealment  of  a  breach  of  trust,  419. 
CONCUR, 

when  trustees  may  be  compelled  to  concur  and  when  not,  413. 
CONDITION, 

may  create  an  implied  trust,  121. 


INDEX.  589 

COXDITIOXAL  LIMITATIOX,  380. 
CONDITIONS   OF   SALE, 

what  trustees  may  propose,  786. 
CONFIDENCE,  112,  113.     See  Implied  Trusts. 

a  use  and  confidence  the  same  thing,  298. 
CONFIRMATION, 

whether  a  cestui  que  trust  can  confirm  a  void  lease,  529. 
CONSENT, 

to  a  marriage,  512-519. 
to  a  sale  by  tenant  for  life,  777,  784. 
or  by  any  other  person,  784. 
by  a  majority,  78-4. 
CONSIDERATION, 

effect  of  upon  agreements,  95,  103,  106. 

the  consideration  the  foundation  of  the  conveyance  under  the  statute 

of  uses,  106. 
■when  consideration  paid  by  one  and  title  taken  to  another,  126. 
adequacy  and  inadequacy  of,  187,  220. 
what  is  a  valuable  consideration,  220. 
purchaser  without  notice,  from  one  with,  222. 
purchaser  witli  notice,  from  one  without,  222. 
no  resulting  trust  where  grantee  pays  a  valuable,  151. 
conveyance  to  stranger  for  nominal,  161. 
or  without  any,  161-165. 

consideration  cannot  be  denied  in  deeds  of  bargain  and  sale,  162. 
a  devise  imports  a  consideration,  94,  163. 
CONSTRUCTION, 

trusts  governed  by  the  same  rules  of,  as  legal  estates,  357-359,  377. 
duty  of  court  to  construe  written  instruments,  724. 
CONSTRUCTIVE   TRUSTS, 
what  are,  27,  166. 
description  of,  166. 
nature  of,  166. 
not  trust  at  all,  166. 

control  of  courts  of  equity  over,  166,  167. 
three  classes  of  constructive  trusts  which  arise  from  actual  fraud. 

constructive  fraud,  and  equitable  construction,  168. 
courts  relieve  against  fraud  by  construing  the  fraudulent  partv  into  a 

trustee,  170. 
principles  upon  which  courts  act,  166-170. 
actual  fraud  designed  to  mislead  and  deceive,  171. 
description  and  effect  of,  171. 

where  a  person  affirms  what  he  does  not  know  to  be  true,  171. 
misrepresentations  {suggestio  falsi) ,  171-177, 
by  agent,  171. 


590  -INDEX. 

CONSTRUCTIVE  TRUSTS,  —  continued. 

fraud  of  third  parties,  171. 

misrepresentations  must  be  of  facts  and  not  of  matters  of  opinion  or 
expectation,  173. 

misrepresentations  of  opinions  may  be  material  if  the  parties  stand  in 
a  fiduciary  relation,  173. 

misrepresentations  must  be  of  material  facts,  174. 

what  may  be  material,  174,  177. 

must  be  of  something  peculiarly  within  his  knowledge,  175. 

rules  upon  this  subject,  175. 

relief  may  depend  upon  the  form  in  which  the  remedy  is  sought,  176. 

frauds  arising  from  concealment  or  silence,  177. 

when  mere  silence  is  fraudulent  concealment,  178,  179. 

where  the  parties  stand  in  a  fiduciary  relation,  178. 

where  there  is  an  obligation  to  speak,  178. 

where  one  knows  that  another  is  relying  upon  him,  179. 

where  silence  is  fraudulent,  179, 

what  is  a  suppressio  veri,  180. 

must  be  an  affirmative  concealment,  180. 

relief  will  be  given  where  acts  are  prevented  by  fraud,  181. 

if  a  deed  or  will  is  fraudulently  prevented  by  one,  he  will  hold  the 
advantage  he  may  obtain  in  trust  for  the  person  defrauded.  181. 

illustrations  and  distinctions,  181. 

courts  of  equity  cannot  set  aside  a  will,  or  the  probate  of  it,  nor  pre- 
vent it  from  being  allowed,  182. 

how  far  courts  can  go  in  giving  relief  from  fraud  in  relation  to  wills, 
182. 

relief  in  the  case  of  fraud  in  destroying  deeds,  183. 

in  case  of  wills  fraudulently  destroyed,  183. 

relief  by  constructive  trusts  in  cases  of  ignorance,  accident,  or  mis- 
take, 184-186. 

rules,  exceptions,  and  distinctions,  184-186. 

constructive  trusts  arising  from  inadequacy  of  consideration,  187. 

rules  and  distinctions  as  to  the  inadequacy  of  consideration,  187. 

in  what  cases  inadequacy  of  consideration  would  affect  the  agreement, 
187. 

constructive  trusts  in  cases  of  sales  by  an  heir  or  reversioner,  188. 

where  relief  will,  or  will  not,  be  given,  188. 

rules  do  not  apply  to  persons  not  heirs,  188. 

in  cases  of  contracts  with  sailors,  188  n. 

of  contracts  with  lunatics  and  imbecile  or  weak-minded  persons,  189, 
190. 

rules  and  distinctions  in  relation  to,  189,  190. 

relief  from  contracts  procured  from  drunkenness,  191. 
from  contracts  procured  by  duress,  192. 


INDEX.  591 

CONSTRUCTIVE   TRUSTS,  —  continued. 

relief  from  fear  or  distress,  and  when  several  of  these  circumstances 

concur,  193. 
constructive  trusts  which  arise  from  the  relations  and  situation  of  the 

parties,  194. 
rules  and  reasons  applicable  to  such  contracts,  19-1. 
if  trustees  obtain  an  interest  in   the  trust  property,  a  constructive 

trust  will  arise,  19-1-200. 
rules  and  distinctions,  194-200. 

trusts  arising  from  contracts  between  guardian  and  ward,  200. 
between  parent  and  child,  201. 
attorney  and  client,  202,  203. 
other  persons  standing  in  a  confidential  relation,  204,  209, 

210. 
administrators  or  executors  and  heirs,  legatees,  devisees,  or 
creditors,  205. 
administrators  cannot  purchase  the  assets  of  the  estate,  205. 
contracts  between  principal  and  agent,  206. 
between  corporations  and  their  directors,  207. 
confidential  friends  and  advisers,  210. 
physicians  and  patients,  210. 
clergymen  and  parishioners,  210. 
partners,  landlords,  and  tenants,  210. 
where  the  fraud  of  third  persons  Avill  create  a  constructive  trust,  211. 
where  conveyance  to  defraud  creditors  will  create  a  constructive  trust, 

212. 
where  a  marriage  is  induced  by  representations  held  out  by  third 

persons,  a  constructive  trust  may  arise,  208. 
constructive  trust  may  arise  if  a  man  or  woman  on  the  point  of  mar- 
riage makes  a  fraudulent  conveyance  of  property,  213. 
conditions  under  which  such  trusts  will  arise,  213. 
constructive  trusts  may  arise  out  of  immoral  or  iihgal  contracts,  264. 
constructive  trusts  where  purchaser  at  auction  fraudulently  pretends 

to  bid  for  another,  215. 
or  fraudulently  prevents  competition,  215. 

constructive  trusts  arise  from  secret  trusts  in  fraud  of  the  law,  216. 
constructive  trust  arises  upon  the  purchase  of  trust  property  without 

consideration,  217,  241,  828-843. 
and  upon  purchase  for  value  with  notice  of  the  trust,  217,  218,  241, 

828-843. 
constructive  trusts  arising  from  sales  of  property  by  executors  or 

administrators,  224,  225,  241,  809-814. 
in  what  cases  they  will  arise,  and  in  what  not,  225,  809-814. 
a  person  defrauded  of  his  propeity  still  has  an  equitable  estate  in   it, 
and  not  a  mere  right,  227. 


692 


INDEX. 


CONSTRUCTIVE  TRUSTS,  —  coniimied. 

statute  of  frauds  no  bar  to  a  constructive  trust,  226. 

nor  the  statute  of  limitations,  228-230. 

constructive  trusts  by  equitable  construction  in  the  absence  of  fraud, 

231. 
arising  from  vendor's  lien  for  purchase-money,  231-239. 
constructive  trusts  from  descent  of  property  upon  failure  or  want  of 

a  trustee,  240. 
when  a  person  receives  trust  property  by  descent   or  gift  without 

fraud,  241. 
the  trusts  upon  which  corporations  hold  their  property,  242. 
trusts  where  they  wrongfully  divide  their  property  among  their  mem- 
bers without  paying  their  debts,  242. 
constructive  trusts,  when  corporations  wrongfully  or  negligently  per- 
mit shares  or  stocks  held  in  a  fiduciary  capacity  to  be  transferred, 
242. 
what  will  amount  to  notice  to  create  a  trust  in  such  cases,  242,  810, 

814.     See  Addenda. 
constructive  trusts,  where  a  creditor  holds  title  to  property  as  collat- 
eral security  for  his  debt,  243. 
in  cases  of  failure  of  title,  246  a. 
in  favor  of  sureties,  247  a. 
a  constructive  trust  arises  when  a  debtor  is  made  executor  of  his 

creditor's  estate,  244. 
so  when  legatees  or  distributees  are  overpaid  by  mistake,  244. 
a  constructive  trust  may  arise  from  a  wrongful  intermeddling  with 

trust  property,  245,  246. 
constructive  trust  from  the  possession  of  deeds  and  papers  for  the 
benefit  of  others,  247. 
CONTINGENT  INTEREST, 

may  be  assigned  in  trust,  68. 
CONTINGENT  REMAINDERS,   TRUSTEES   TO   PRESERVE, 
necessity  of  trustees  to  preserve,  522. 
how  they  might  have  been  destroyed,  522. 
how  settlements  were  drawn  to  preserve,  523. 
duties  of  trustees  of,  523. 
not  frequent  in  the  United  States,  522. 
nor  in  England  since  the  statute,  522. 
CONTINUANCE  OF   TRUST,  23. 
CONTRACTS.     See  Agreement. 

between  trustee  and  cestui  que  trusl.  create  constructive  trusts,  194- 

200. 
of  married  woman.     See  Married  Women. 
CONTRIBUTION, 

of  charitable  funds,  733,  734. 


INDEX.  593 

CONTRIBUTrON,  —  continued. 

for  breaches  of  trust  between  cotrustees,  848,  876. 

in  respect  to  costs,  888. 
CONTROL, 

trustees  being  liable  for  breaches  of  trust  must  have  control  of  prop- 
erty, 330,  331,  543. 

■whether  courts  control  execution  of  powers,  .511,  519. 

tru>tees  must  not  part  with  control,  443-445,  543. 
CONVENIENT   SPEED,  771,  777. 
CONVERSION, 

what  diligence  trustees  must  use  to  get  in  and  convert  the  trust 
property,  439. 

when  a  testator's  establishment  may  be  broken  up,  459. 

when  shares  and  stocks  must  be  converted,  439,  547. 

wlien  personal  security  must  be  called  in  and  converted,  440,  547. 

what  diligence  must  be  used,  440,  454,  547. 

what  diligence  when  the  direction  is  to  convert  when  tiiey  think  expe- 
dient, 440. 

what  care  must  be  taken  of  mortgages,  440. 

a  trust  for  conversion  must  be  strirlli/  executed,  448,  548. 

when  the  trustee  must  convert  the  property,  448-454. 

and  when  the  cestui  que  trust  may  enjoy  it  in  specie,  448,  547,  548. 

the  general  rule  as  to  conversion,  449,  547. 

peri.shable  property  must  be  converted,  450,  547. 

iiidess  a  contrary  intention  appears  upon  the  instrument,  450,  547. 

where  property  grows  less  valuable  daily,  450,  547. 

where  property  is  subject  to  great  risks,  450,  547,  548. 

where  property  is  in  reversion  and  yields  no  income  to  the  tenant 
for  life,  450. 

where  an  intention  may  be  implied  that  property  is  not  to  be  con- 
verted, but  is  to  be  enjoyed  in  specie,  451,  547. 

trustees  for  infants  cannot  convert  money  into  land,  and  vice  versa, 
605,  606. 

otherwise  in  case  of  necessity,  607. 

whether  a  court  of  equity  can  decree  a  sale  of  an  infant's  laud,  610. 
CONVEYANCE, 

when  a  conveyance  will  carry  both  the  legal  and  beneficial  interest, 
157. 

conveyance  by  trustee  may  pass  the  legal  title,  but  will  not  pass  the 
powers  of  the  trustee,  nor  relieve  him  from  responsibility,  ■J74. 

even  if  he  conveys  to  a  cotrustee,  274. 
COPYRIGHT, 

may  be  conveyed  in  trust,  68. 
CORPORATIONS, ' 

may  create  a  trust,  31,  588. 
VOL.  II.  88 


594  INDEX. 

CORPORATIONS,  —  continued. 
may  be  trustees,  42-45. 
what  trusts  they  may  execute,  43-45. 
when  they  cannot  execute  trusts,  43,  45. 
remedies  against,  for  breach  of  trust,  42. 
when  may  be  cestuis  que  trust,  63. 
directors  of,  cannot  purchase  its  property,  207. 
hold  their  property  in  trust,  242. 
may  become  trustees  by  construction,  by  permitting  shares  or  stocks 

to  be  transferred  upon  the  books,  242. 
may  require  evidence  of  an  authority  to  transfer  stocks,  242. 
what  may  be  notice  to,  242. 

may  make  assignments  in  trust  for  creditors,  588. 
for  charitable  purposes,  742,    743. 
COSTS, 

in  suits  between  trustees  and  strangers,  costs  are  paid  and  received 

as  between  other  parties,  891. 
exception  to  the  rule  in  a  few  States,  891. 
where  fiduciaries  do  not  pay  costs  in  case  of  failure,  courts  may 

impose  costs  for  improper  suits,  891. 
when  executors  may  have  costs,  although  they  fail  in  setting  up  a 

will,  891. 
when  the  heirs  may  have  costs,  891. 
when  trustees  or  executors  are  compelled  to  pay  costs,  they  may 

charge  them  in  their  accounts,  891. 
but  where  they  are  refused  their  costs,  or  ordered  to  pay  costs  by 

reason  of  their  misconduct,  they  cannot  be  allowed  for  them  in 

their  accounts,  891,  903. 
when  trustees  are  entitled  to  costs  as  between  solicitor  and  client, 

891,  894,  895. 
between  trustees  and  strangers,  only  costs  between  parties  are  taxed, 

891. 
but  trustees  may  have  an  allowance  in  their  accounts  for  extra  ex- 
penses, 891. 
costs  in  equity  are  within  discretion  of  the  court,  892. 
the  fact  that  a  party  is  a  trustee  will  not  control  this  discretion,  892. 
a  party  may  fail  and  recover  costs,  892. 
or  he  may  have  a  decree  in  his  favor  and  be  ordered  to  pay  costs, 

892. 
when  mortgagees  entitled  to  costs  in  redemption  suits,  892. 
when  trustees  are  entitled  to  costs,  as  of  course,  892. 
where  an  executor  may  have  his  costs  upon  a  creditor's  bill,  892. 
or  may  retain  his  costs,  892. 

when  trustees  shall  recover  costs,  894,  897,  898,  901. 
where  a  solicitor  trustee  has  conducted  the  case,  895. 


INDEX.  '        595 

COSTS,  —  continved. 

■where  a  plaiiitiif  brings  a  suit  to  create  a  trust  fund,  or  to  establish  a 

resulting  or  constructive  trust,  896. 
trustees  may  have  their  costs  whether  plaintiffs  or  defendants,  899. 
so  all  who  are  necessary  parties  in  a  suit  for  the  protection  of  the 

trustees,  are  entitled  to  their  costs,  899,  928. 
out  of  what  fund  such  costs  are  paid,  903  a. 

where  the  suit  is  to  settle  some  private  interest  of  the  trustee,  900. 
where  a  trustee  must  pay  costs,  411,  900. 
where  he  will  be  disallowed  his  costs,  898,  901,  902. 
if  a  trustee  files  an  improper  answer,  898,  901. 
where  he  is  guilty  of  misconduct,  900,  901,  902. 
if  a  trustee  has  a  right  to  his  discharge,  he  is  entitled  to  his  costs  for 

the  proceeding,  280. 
otherwise,  if  he  proceeds  improperly  or  capriciously  for  his  discharge, 

280. 
if  a  trustee  devises  a  trust  estate,  his  assets  may  be  liable  for  the  costs 

of  restoring  the  estate  to  its  proper  channel,  339. 
COTRUSTEES, 

power  of  each  cotrustee  over  trust  property,  334,  335. 

trustees  generally  not  responsible  for  the  acts  of  their  cotrustees, 

415-421. 
collusion  makes  them  all  liable,  415. 
signing  receipts  does  not  make  them  liable  unless  they  all  receive  the 

monej',  416. 
cotrustees  must  sign  receipts,  416,  806. 
where  a  trustee  signs  a  receipt  the  burden  is  on  him  to  show  that  he 

received  no  money,  416. 
rule  at  law,  416. 

how  cotrustees  may  manage  the  trust,  417. 
and  for  what  each  one  may  make  himself  responsible,  417. 
in  what  cases  they  may  be  responsible  for  the  acts  of  tlieir  cotrustees, 

417-420. 
fraud  or  collusion  will  render  them  liable,  417-420,  445. 
negligence,  what  will  render  all  responsible,  417-420,  445. 
where  they  agree  to  be  responsible  for  each  other's  acts,  417,  426. 
where  a  will  or  settlement  makes  them  all  responsible,  417. 
they  will  be  liable   for  the  acts  of  their  cotrustees,  although  the  will 

provides  that  they  shall  not  be,   if  tiiey  are  negligent,  417,  444, 

445. 
other  negligence  which  will  render  cotrustees  liable  for  the  acts  of 

each  other,  418,  444,  445. 
COUNSEL.     See  Attokney  ;  Solicitor. 
COURTS, 

jurisdiction  of  courts  in  frauds,  166,  167. 


596  INDEX. 

COURTS,  —  continued. 

courts  cannot  enforce  the  highest  standard  of  honorable  and  moral 
conduct,  173,  177. 

■what  fraudulent  acts  they  can  relieve  against,  173,  177. 

•what  powers  courts  will  execute,  249,  258. 

control  of  courts  over  jiowers,  297,  510,  511,  519. 
COVENANT, 

no  trusts  can  result  upon  a  voluntary  deed  which  contains  covenants 
of  warranty,  162. 

effect  of  covenants  in  a  deed  of  trust,  260. 

trustees  personally  bound  by  covenants  in  leases,  530,  536. 
COVERTURE.     See  Married  Women. 
CREATION   OF  TRUSTS, 

who  may  create  trusts,  28. 

the  sovereign  power,  29. 

the  United  States,  30. 

a  State  may  create  a  trust,  30. 

corporations,  31. 

married  women,  32. 

infants,  33. 

lunatics,  35. 

alien,  36. 

bankrupt,  37. 

how  trusts  may  be  created.     See  Express  Tijusts,  Chap.  III. 

by  the  king,  29. 

by  the  United  States,  30. 

by  a  State,  30. 

by  married  women,  32. 

no  formalities  required  in,  82. 

care  must  be  taken,  in  the  creation  of  trusts,  that  the  statute  of  uses 
does  not  execute  the  legal  estate  in  the  cestui  que  trust,  304. 

what  form  of  conveyancing  will  prevent  the  statute  of  uses  from  exe- 
cuting the  legal  title  in  the  cestui  que  trust,  304. 
CREDIT, 

whether  trustees  may  sell  upon,  786  a. 
CREDITORS, 

of  an  executor,  administrator,  or  trustee  cannot  receive  assets  of  trust 
estates  in  payment,  810,  814. 
CREDITORS,   TRUSTS   FOR,  585-602. 

trusts  for  creditors,  how  may  be  created,  585. 

what  debts  it  may  include,  585. 

is  favorably  regarded  and  construed  in  equity,  585. 

preferences  may  be  made  at  common  law,  585,  586. 

statutes  in  various  States  relating  to  preferences,  586. 

preferences  under  bankrupt  laws,  586. 


INDEX.  597 

CREDITORS,   TRUSTS   TOR,  —  confumed. 

an  assignment  of  all  debtor's  property  in  trust  to  pay  debts  is  an  act 

of  bankruptcy,  587. 
how  such  assignments  may  be  avoided,  587. 
corporations  may  make  assignments  for  creditors,  588. 
such  assignment  a  forfeiture  of  charter,  588. 
how  assignments  may  be  made,  585,  589. 
by  letter  or  power  of  attorney,  589. 

conveyances  directly  to  creditors,  not  a  trust  for  creditors,  589. 
such  assignments  in  trust  are  not  within  the  statute  against  fraudulent 

conveyances  to  hinder  or  delay  or  defraud  creditors,  590. 
although  tliey  result  in  delay,  590. 

but  actual  fraud  in  such  an  assignment  will  vitiate  it,  590. 
what  will  be  such  badges  of  fraud  in  an  assignment  as  will  defeat  it, 

590-592,  600. 
when  trusts  for  creditors  may  be  revoked,  and  when  not,  593. 
when  creditors  may  compel  the  execution  of  the  trust,  594. 
who  may  be  parties  to  the  bill  to  enforce  the  trust,  594. 
if  the  assignment  is  set  aside,  in  what  manner  the  creditors  are  paid, 

594. 
whether  creditors  can  obtain  legal  priorities,  594. 
creditor  must  obtain  judgment  before  setting  aside  the  trust,  59G. 
the  trustee  must  be  a  party  to  proceedings,  595. 
whether  the  debtor  or  his  heirs  or  representatives  must  be  parties, 

595. 
whether  persons  having  liens  must  be  parties,  596. 
the  effect  of  an  assignment  upon  prior  liens,  59G. 
a  creditor  may  be  trustee,  596. 
effect  of  making  a  creditor  a  trustee,  596. 
the  deed  of  assignment  may  prescribe  the  manner  of  carrying  out  the 

trust,  597. 
the  trustees  must  act  under  the  deed  and  find  all  their  power  in  it, 

597. 
the  assignment  implies  a  power  to  sell  the  property,  597,  598. 
but  there  may  be  special  directions  inconsistent  with  a  power  of  sale, 

598. 
where  a  power  of  sale  will  not  be  implie<l,  598. 
where  the  parties  will  be  estopped  to  deny  the  power  of  sale,  598. 
purchaser  to  pay  debts  generally  need  not  look  to  the  necessity  of  a 

sale,  nor  the  application  of  the  purchase-money,  598. 
otherwise  in  trust  to  pay  one  debtor,  598. 
as  to  partnership  assignments  in  trust,  599. 
marshalling  the  assets  of  a  partnership,  599. 
where  a  ])artnersliip  assignment  will  be  void,  599. 
as  to  limited  partnership,  599. 


598  INDEX. 

CREDITORS,  TRUSTS  TOR,  — continued. 

•where  the  trustees  are  to  adjudicate  upon  the  claims  of  the  creditors, 
600. 

•what  debts  trustees  may  pay,  600. 

and  what  they  cannot  pay,  600. 

•where  interest  must  be  paid,  600. 

•whether  the  statute  of  limitations  applies  to  assi<rnments,  601. 

•whether  an  assignment  prevents  the  statute  of  limitations  from  run- 
ning against  debts,  601. 

the  order  of  paying  under  an  assignment,  602. 

of  the  residue,  and  how  other  creditors  may  reach  it,  602. 
CROWN.     See  King  ;  Sovereign. 

remedies  against,  40. 
CURTESY.     See  Trust  Estates,  322-324. 
CUSTODY, 

a  father  will  not  be  compelled  to  support  children  taken  from  his 
custody,  614. 

duty  of  trustees  as  to  custody  of  trust  property,  441. 

what  cai'e  they  must  take  of  the  custody,  441. 

whei'e  they  may  keep  the  property,  441-443. 

when  they  reside  in  different  places,  442. 

how  they  must  deposit  money  in  bank,  443,  447. 

how  long  they  may  keep  money  in  bank,  443. 

in  what  manner  they  must  keep  money  in  bank,  443,  446. 

when  they  may  intrust  money  to  the  custody  of  third  persons,  444. 

under  what  circumstances  they  will  be  liable  if  property  is  lost  from 
the  custody  of  others  or  themselves,  444,  445. 

they  must  not  mingle  trust  property  with  their  own,  467. 
CY  PEES.     See  Charitable  Uses. 

whether  charitable  trusts  can  be  carried  into  effect,  cy  pres,  717-729. 

executory  trusts  may  be  carried  into  effect,  cy  jfres,  376,  390. 

D. 

DEBTS, 

trusts,  to  pay  under  an  assignment  inter  vivos  for  creditors,  585-602. 

See  Creditors,  Trusts  for. 
trusts  under  a  will  to  pay  debts,  557-566. 
at  common  law  real  estate  of  a  deceased  person  not  liable  for  simple 

contract  debts,  557. 
real  estate  now  made  liable  by  statute  in  England,  557. 
the  rights  of  creditors  against  the  personal  estate  given  by  law,  558. 
therefore  no  trust  could  be  created  in  personal  estate  to  pay  debts 

unless  with  the  assent  of  creditors,  558. 
trusts  could  be  created  in  real  estate  to  pay  a  testator's  debts,  558. 


INDEX.  599 

DEBTS,  —  continued. 

by  statute  in  England,  if  a  testator  provides  by  will  how  his  debts 
are  to  be  paid  out  of  his  real  estate,  the  provisions  must  be  fol- 
lowed, 558. 

in  the  United  States  both  real  estate  and  personal  are  liable  for  debts, 
559. 

trusts  cannot  be  created  in  real  or  personal  estate  altering  the  rights 
of  creditors,  559. 

bow  creditors  may  be  estopped  from  claiming  a  legal  settlement,  and 
the  executor  become  a  trustee  for  them,  569. 

■whether  such  trusts  have  any  effect  upon  the  statute  of  liuiitations, 
559. 

•what  effect  they  may  have,  559. 

such  trusts  created  in  wills  for  creditors  may  result  in  trusts  for  heirs, 
legatees,  or  devisees,  560,  561. 

the  order  in  which  a  testator's  property  will  be  ap2">lied  to  the  pay- 
ment of  his  debts,  5C2-567. 

in  whose  favor  the  estate  will  be  marshalled  if  the  legal  rights  of 
creditors  have  disturbed  the  rights  of  legatees  or  devisees  among 
each  otiier,  562-567. 
DECLARATION.     See  Express  Trusts;  Frauds,  Statute  of;  Parol; 
Parol  Evidence. 

of  trust  by  will,  87-94. 

perfected  declaration  without  consideration  good,  96. 

at  what  time  must  be  made  by  grantor  to  raise  a  trust,  77,  147. 
by  grantee,  82. 

is  not  a  conveyance,  81. 

need  not  be  made  in  writing,  but  must  be  proved  by  writing,  79. 

when  defective  deeds  may  operate  as,  95,  240. 

what  may  be  declarations  or  evidence  of  declarations,  82. 

when  a  will  not  properly  executed  may  be  used  as,  91,  93. 

inipei'fect  declaration  upon  valuable  consideration  good,  95. 
DECREE, 

effect  of  a,  for  an  account,  890. 

amendment  of,  if  cestui  que  trust  is  abroad,  883. 

costs  must  be  asked  for  before,  897. 

suspends  all  the  powers  of  trustees,  474,  764. 

after  suit  ami  before  decree  they  retain  their  powers,  but  should  con- 
sult court,  474. 

but  they  must  perform  all  their  duties,  474. 

distribution  under  a,  indemnifies  the  trustees,  924,  928. 
DEED, 

not  necessary  at  common  law  to  convey  land,  74. 

whether  acceptance  of  trust  should  be  by,  260,  261,  270,  271. 

where  a  defective  deed  may  operate  as  declaration  of  trust,  95,  240. 


600  INDEX. 

DEED,  —  continued. 

deed  executed  by  one  trustee  does  not  convey  his  share,  412. 
DEEDS   OF   TRUST  FOR   SECURITY.     602  a-602  ^^. 
See  Mortgages  with  Power  of  Sale. 
DEFE2fDANT, 

in  what  order  cesluis  que  trust  and  trustees  should  be  made  parties, 

877. 
trustees  as,  should  join  in  the  answer,  888. 
DEFENITIOXS, 

of  a  use,  13. 
of  a  trust,  13. 
of  a  charity,  697. 
of  an  executory  trust,  359. 
of  a  perpetuity,  377. 
of  fraud  in  a  court  of  equity,  169. 
DELAY.     See  Laches. 

great  delay  must  be  explained,  230. 
may  bar  or  vary  the  relief,  230. 
DELEGATED, 

powers  and  duties  of  trustees  cannot  be,  287,  408. 

delegation  of  the  trust  even  to  a  cotrustee  may  be  a  breach  of  it,  402, 

408. 
power  to  sell  cannot  be,  775. 

a  sale  or  devise  does  not  delegate  a  discretion,  410. 
powers  to  sign  receipts  cannot  be,  806. 
trustees  may  follow  the  direction  of  the  settlor  in  employing  clerks, 

agents,  and  other  persons  in  the  execution  of  the  trust,  403. 
to  employ  agents  and  servants  not  a  delegation  of  the  trust,  404, 

409. 
so  there  may  be  a  necessary  delegation  in  the  course  of  business, 
404,  417. 
DELI^'ERY, 

of  deed  not  necessary  to  perfect  a  voluntary  settlement,  103. 
DEMURRER, 

if  an  express  trust  in  land  is  alleged  on  the  face  of  a  bill  to  be  by 

parol,  defendant  may  demur,  84,  85,  n. 
if  it  does  not  appear  on  face  of  bill  to  be  by  parol,  a  writing  is  pre- 
sumed and  defendant  cannot  demur,  84,  85,  n. 
if  the  facts  on  the  face  of  a  bill  bring  the  case  within  the  statute  of 
limitations,  defendant  may  demur,  62.    ' 
DENIAL, 

of  constructive  trust  and  of  the  facts  on  which  it  is  founded  must  be 
explicit,  219. 
DESCENT, 

whether  a  trust  estate  descends  to  heirs  or  not,  339,  341,  342. 


INDEX.  601 

DESCENT,  —  continued. 

upon  the  death  of  one  or  more  trustees,  trust  estates  vest  in  the  sur- 
vivors or  survivor,  343. 
upon  death  of  last  survivor  vests  in  his  heirs,  269,  321,  343,  344. 
in  some  States  trust  does  not  descend,  but  vests  in  the  court,  341. 
DESCRIPTIO  PEBSOX.E, 

the  words  trust  and  trustee  may  be  used  as,  158. 
DESIRE.     See  Implied  Trust. 
BE  SOX  TORT, 

trustees  deson  tort,  245,  265,  274,  288. 
DETERMINATION, 

a  trust  may  be  determined  in  two  ways,  020. 

(1.)  by  accomplishment  of  its  purposes  or  expiration  of  the  term 

for  which  it  was  created,  U20. 
(2.)  by  decree  of  court  by  consent  of  parties,  920. 
the  liability  of  trustees  maybe  determined  in  several  forms,  921,  924. 
what  will  not  determine  the  liability  of  trustees,  921,  923,  926,  927. 
DEVASTAVIT, 

if  a  purchaser  knows  that  the  sale  by  executor  is  a,  he  may  be  held 

as  a  constructive  trustee,  225. 
when  coexecutors  or  trustees  will  be  guilty  of,  401. 
DEVISE, 

imports  a  consideration,  94. 

trustees  may  devise  a  trust  estate,  335. 

whether  a  devise  of  a  trust  estate  by  a  trustee  is  embraced  in  his  will, 

335,  336. 
rules  that  govern  the  construction  in  such  cases,  336,  337,  339. 
whether  the  interest  of  a  mortgagee  in  lee  passes  by  a  general  devise, 

338. 
whether  a  trustee  should  devise  a  trust  estate  or  allow  it  to  descend, 

339. 
whether  a  devisee  can  execute  the  trust,  294,  340,  495. 
in  some  States  trust  property  does  not  descend,  but  vests  in  the  court 

until  a  new  trustee  is  appointed,  341. 
lands  agreed  to  be  sold  may  be  devised,  and  devisee  takes  them  in 

trust,  342. 
may  be  required  to  convey,  342. 
DEVISEE.     See  Dkvisk. 

whether  can  execute  powers,  294,  339,  495. 
whether  a  devisee  can  execute  a  trust  or  not,  339,  341. 
a  devise  of  a  trust  estate  does  not  delegate  a  discretionary  trust,  294, 
340,  410,  495. 
DEVOLUTION, 

of  the  trust,  upon  whom,  343,  344. 
DIRECT  TRUSTS.     See  ExruEss  Tuusts. 


602  INDEX. 

DIRECTION, 

as  to  maintenance  of  infants,  effect  of,  612. 
DIRECTORS, 

of  a  corporation,  cannot  purchase  the  property  of  their  corporation, 

207. 
of  a  trading  company,  powers  of,  486. 
if  directors  purchase  property  with  corporate  money  in  their  own 

names,  a  trust  results,  127. 
accountable  for  all  profits  made  in  their  office,  430. 
DIRECTORY   POWERS,  490,  507,  508. 

See  Powers. 
DISABILITY, 

persons  under,  not  barred  by  statute  of  limitations,  864. 
DISAGREE, 

whether  trustees  may  be  removed  for  disagreeing  among  themselves, 
276. 
DISCHARGE   OF   TRUSTEE.     See  Removal. 

cannot  discharge  himself  by  his  own  action,  274,  283,  401,  921. 
mere  abandonment  or  relinquishment  does  not  divest  the  property  or 

vest  it  in  another,  274,  401,  921. 
may  be  discharged  in  several  ways,  921. 

(1.)  by  expiration  or  complete  execution  of  the  trust,  921. 
(2.)  by  decree  of  court  declaring  the  trust  at  an  end,  920,  921. 
(3.)  by  agreement  of  parties,  if  siu'  juris,  274,  285,  401,  921. 
(4.)  by  virtue  of  a  power  in  the  instrument,  288,  297,  921. 
(5.)  death  of  trustee  discharges  his  estate  from  future  responsibility, 

426,  921. 
(6.)  by  substitution  by  court  of  another  ti'ustee,  282,  283,  921. 
(7.)   by  sale  of  the  trust  pi-operty  under  a  prior  title,  921. 
(8.)   a  release  by  trustee  to  an  assignor,  921. 
(9.)  a  conveyance  of  the  equitable  estate  to  the  trustee,  921. 
(10.)  a  conveyance  of  the  legal  title  by  trustee  to  the  cestui  que 
trust,  624,  921. 
if  the  cestui  que  trust  is  not  sui  juris,  such  conveyance  will  not  dis- 
charge the  trustee,  624,  652,  921. 
when  there  are  no  provisions  in  the  instrument  and  parties  are  not  sui 
,     juris,  proceedings  to  discharge  must  be  before  the  court,  261,  401. 
for  what  causes  a  trustee  may  be  discharged,  280. 
discharge  of  a  trustee  for  any  cause  does  not  release  him  from  past 

liability,  922. 
when  a  trustee  has  a  right  to  be  discharged,  280. 
DISCLAIMER.     See  Acceptance  of  Trust. 
all  trusts  may  be  disclaimed,  259,  267. 
disclaimer  ought  to  be  executed,  267,  270. 
prevents  the  estate  from  vesting,  267,  270." 


INDEX.  603 

DISCLABIER,  —  continued. 

within  ■what  time  ought  to  disclaim,  267. 

cannot  disclaim  after  acceptance  and  the  estate  is  vested,  267,  268. 

may  resign  after  acceptance  by  consent  or  decree  of  court  or  consent 
of  parties,  268. 

and  convey  the  estate,  268. 

heir  cannot  disclaim  if  his  ancestor  accepted,  269. 

heir  cannot  divest  an  estate  by  mere  disclaimer,  269. 

parol  disclaimer  sufficient,  270. 

need  not  be  express,  270. 

may  be  shown  by  acts  and  conduct,  270. 

cannot  disclaim  the  trust  and  claim  the  estate,  270. 

a  trustee  cannot  qualify  his  acts,  -iOl. 

a  disclaimer  ought  not  to  be  a  matter  of  inference,  270,  271. 

the  disclaimer  ought  not  to  be  in  form  a  conveyance,  for  that  would 
be  an  implied  acceptance,  271. 

may  be  by  answer  in  ch:incery,  271. 

or  at  the  bar  ol' the  court,  271. 

effect  of  a  disclaimer  upon  gifts  to  the  trustee,  272,  273. 

vests  the  estate  in  the  other  trustees,  273. 

if  all  disclaim,  estate  vests  in  heir,  273. 

what  powers  vest  in  remaining  trustees  after  disclaimer  by  some, 
273. 

all  powers  given  to  the  office  vest  in  remaining  trustees,  273. 

powers  given  to  the  person,  or  that  imply  a  personal  confidence,  will 
be  destroyed  by  a  disclaimer,  273. 

a  trustee  may  disclaim,  and  claim  a  benefit  under  a  will,  272. 

he  may  disclaim  and  appoint  his  successor  when  such  power  is  given, 
272. 
DISCOVERY, 

parties  interested  entitled  to  discovery  of  a  secret  trust,  216. 
DISCRETION", 

a  mere  discretion  is  a  power,  2-19. 

an  imperative  discretion  is  a  trust,  249. 
DISCRETIONARY   POWERS,  476,  49,5,  497,  500,  508-511. 

See  Powers. 
DISCRETIONARY  TRUSTS,  19,  248-258. 

See  PowKRS. 

mere  powers  are  discretionary,  248. 

courts  cannot  compel  their  execution,  248. 

cannot  be  delegated  to  a  cotrustee,  408. 
DISSEISIN, 

of  the  trustee,  241. 

whether  the  trustee  can  disseise  the  cestui  que  trust,  864. 

of  outstanding  terms,  241. 


604  INDEX. 

DISSEISOR, 

not  bound  by  a  trust,  241,  346. 

remedy  against  must  be  by  action  in  the  name  of  trustee,  346. 
DISTRESS, 

relief  from  contracts  procured  from  parties  in,  192. 
DISTRIBUTION, 

of  the  trust  fund  upon  the  determination  of  the  trust,  922-933. 

■whether  trustees  entitled  to  a  release  upon  payment  and  distribution, 
922. 

•where  they  pay  according  to  terms  of  the  trust  are  not  entitled  to  a 
release,  922. 

•when  they  pay  upon  new  arrangements,  922. 

or  to  new  trustees,  922,  925. 

whether  upon  distribution  trustees  may  require  indemnity,  922,  925. 

trustees  may  distribute  under  a  decree,  924. 

and  may  bring  suit  to  obtain  a  decree,  928. 

trustees  must  pay  their  distributive  shares  to  the  proper  parties,  926. 

are  responsible  for  any  mistakes,  926,  927. 

advice  of  counsel  will  not  protect  them,  927. 

whether  liable  for  a  mistake  of  the  law  of  the  cestui  que  trusVs  domi- 
cile if  he  is  abroad,  927. 

to  whom  payments  of  a  distributive  share  may  be  made,  929. 

when  cestui  que  trust  is  abroad,  929. 

when  he  may  pay  the  share  of  deceased  persons  without  administra- 
tion of  their  estates,  930. 

to  -^vhom  he  may  pay  an  infant's  share,  930. 

remedies  in  case  of  mistakes  or  overpayments  in  distributing,  931,  932. 

costs  of  distributing,  933. 

whether  courts  in  executing  powers  that  are  trusts  will  make  a  distri- 
bution jjer  capita  or  per  stirpes,  257,  258. 
DISTPdNGAS, 

remed)'  against  corporations,  42. 
DIVIDENDS, 

whether  apportionable  or  not,  554. 

tenant  for  life  entitled  to  what,  544,  545. 

remainder-men  to  what,  544,  545. 

how  cestui  que  trust  may  receive  them,  543. 
DONATIO  CAUSA   MORTIS, 

may  create  a  trust,  87. 
DOUBTFUL  EQUITY, 

purchaser  must  take  notice  of,  833,  834. 
DOWER, 

in  trust  estates,  322-324. 

in  equitable  estates,  322-324. 

rules  in  various  States,  324. 


INDEX.  605 

DRUNKARD.     See  Constructive  Trusts. 

relief  from  contracts,  191. 

Avhether  trustee  ma)'  be  removed,  275. 
DRY   LEGAL  TITLE, 

trustees  of,  520. 

their  duties,  520. 

their  powers,  521. 

trusts  of,  generally  executed  by  statute  of  uses,  521. 
DRY  TRUSTEE, 

may  purchase  the  trust  property,  199. 
DURATION, 

of  private  trusts,  23,  377,  392. 

of  public  trusts,  23,  384,  730,  737. 

of  accumulations,  393,  400,  73S. 

duration  and  extent  of  the  estate  taken  by  trustees,  312-320. 
DURESS.     See  Constructive  Trusts. 

relief  from  contracts  procured  by,  192. 
DUTIES   OF  TRUSTEES, 

a  trustee  must  discharge  the  duties  of  his  oflice,  401. 

cannot  avoid  his  liability  by  mere  renunciation,  4lil. 

trustee  must  make  himself  ac(juainted  with  the  busmess  of  the  trust, 
2G6. 

no  such  thing  as  a  passive  trustee,  266. 

cannot  qualify  his  acts,  if  he  executes  the  trust  in  part,  401. 

if  he  gives  a  bond  for  security  of  trust  property  and  pays  the  bond,  he 
is  still  a  trustee  and  must  discharge  his  duties,  401. 

trustees  cannot  delegate  their  powers  or  duties,  402,  408. 

may  employ  agents,  402,  409,  775,  779. 

how  responsible  for  agents,  402,  404. 

not  responsible  for  employing  a  person  recommended  by  the  settlor, 
403. 

whether  they  may  collect  money  through  an  attorney,  405. 

how  they  may  transmit  money  to  a  distant  place,  41)6. 

cannot  delegate  discretionary  duties  to  their  cotrustees,  408. 

if  they  do  so,  they  are  still  responsible,  408. 

but  acting  by  pro.xy  or  through  agents  is  not  a  delegation  of  duty, 
409. 

a  sale  or  demise  of  the  estate  is  not  a  delegation  of  their  duties  or 
powers,  unless  the  trust  instrument  permit  it,  410. 

trustees  must  act  jointly  as  one  trustee,  411. 

they  cainiot  act  in  some  things  if  one  refuses,  411. 

in  what  acts  they  must  all  join,  411-413. 

in  public  trusts  or  charities  a  majority  may  form  a  quorum,  413. 
trustees    may   be    compelled   to    concur    in    nure    ministerial    acts, 
413. 


606  INDEX. 

DUTIES   OF   TRUSTEES,  — continued. 

but  in  matters  of  personal  discretion  trustees  cannot  be  compelled  to 

concur,  except  they  act  or  refuse  to  act  from  corrupt  motives,  413. 
survivors  must  perform  the  duties  coupled  with  an  interest  committed 

to  them,  414. 
illustrations  of  the  rule,  414. 
but  a  bare  authority  given  to  several  is  destroyed  by  the  death  of  one, 

414. 
whether  cotrustees  are  responsible  for  the  performance  of  their  duties 

by  other  trustees,  415,  421. 
where  special  directions  are  given  in  a  will,  all  the  trustees  ai'e  liable 

if  such  directions  are  not  carried  out,  420. 
responsibilities  of  executors  for  the  acts  of  their  coexecutors,  421- 

426. 
trustees  can  make  no  profit  from  their  position,  427. 
reason  of  the  rule  and  their  duty,  427. 

trustees  must  account  for  all  bonuses  received  by  them,  427,  429. 
and  for  all  profits,  4o0. 

cannot  buy  up  debts  against  their  trust  estate,  428. 
duty  in  respect  to  contracts  with  the  cestui  que  trust,  428. 
duty  in  respect  to  the  employment  of  the  trust  fund  in  their  own  busi- 
ness, or  in  trade  or  speculation,  429. 
what  persons  are  subject  to  these  duties,  430,  431. 
when  charged  with  profits  made  in  business,  they  may  be  allowed  for 

their  time  and  skill,  430. 
trustees  are  bound  to  use  their  skill  for  the  estate,  and  they  cannot 

charge  for  any  professional  services  for  the  estate,  432. 
nor  can  their  partners,  if  the  fees  would  go  indirectly  to  the  trustee, 

432. 
where  compensation  has  been  allowed  to  a  solicitor  under  the  eye  of 

the  court,  432. 
trustee  cannot  set  up  an  adverse  claim  to  the  trust  property,  433. 
his  duty,  if  he  has  a  claim,  432. 

his  duty  when  any  other  person  claims  the  trust  property,  432. 
bis  duty  when  he  knows  of  a  defect  in  the  title  of  the  cestui  que  trust, 

432. 
rights  and  duties  of  trustee  when  cestui  que  trust  dies  without  heirs, 

434-437. 
several  speculative  questions,  435. 

duty  of  trustees  as  to  getting  possession  of  the  trust  property,  438. 
their  duty  in  case  the  trust  fund  is  an  equitable  interest,  428. 
what  notice  they  should  give  of  an  assignment  to  them  of  choses  in 

action,  428. 
duties  of  trustees  as  to  collection  of  debts  and  personal  securities, 
440,  444. 


INDEX.  607 

DUTIES   OF   TRUSTEES,  —  fon/mHed 

tho)-  cannot  deal  with  trust  funds  as  a  testator  dealt  with  his  own, 

440. 
duty  where  special  directions  are  given  as  to  collections,  440. 
as  to  funds  safely  invested,  440. 
under  special  orders  of  the  court,  440. 
in  respect  to  debts  due  from  one  of  themselves  to  the  estate, 

440. 
as  to  the  safe  custody  of  trust  property,  441,  444. 
must  use  the  same  care  as  they  use  in  the  custody  of  their  own  prop- 
erty, 441. 
duty  as  to  depositing  in  bank,  442-444. 
how  they  must  deposit  money  in  bank,  443. 
must  not  keep  money  in  bank  an  unreasonable  time,  442,  443. 
must  so  deposit  that  it  can  be  drawn  with  the  greatest  facility  at  the 

shortest  notice  of  danger,  442,  443. 
duty  in  leaving  money  in  the  hands  of  third  jiersons,  444. 
how  long  they  may  keep  money  in  bank  while  winding  up  an  estate, 

446. 
duty  of  trustee  not  to  mix  his  own  and  trust  funds,  467. 
duty  of  trustee  as  to  converting  the  property,  448-451. 
wliat  property  must  be  converted,  448. 
duty  of  trustees  as  to  investments,  452-467. 
where  trustees'  powers  are  suspended  by  suit  they  must  not  neglect 

their  duties,  474. 
duty  of  trustees  in  emergencies,  47G. 
where  it  is  doubtful  what  shouhl  be  done,  476. 
duty  of  trustees  in  respect  to  accumulating  income,  472,  527. 
as  to  repairs,  477,  526. 
as  to  statute  of  limitations,  481. 
as  to  compounding  and  compromising  claims,  482. 
as  to  equity  of  redemption  in  mortgaged  lands,  483. 
as  to  reimbursing  themselves,  485,  486. 
as  to  insuring,  487,  527. 
as  to  executing  discretionary  powers,  511. 
as  to  consenting  to  marriages,  512-511). 
of  the  dry  legal  title,  52U,  521. 
to  preserve  contingent  remainders,  522. 
of  outstanding  terms  and  terms  attendant,  524,  525. 
of  freeholds,  526,  531. 
as  to  im[)rovements,  526. 
taxes,  527. 
rents,  527. 

where  they  are  to  pay  legacies,  528. 
annuities,  528. 


608  INDEX. 

DUTIES    OF   TR\JSTEES,  —  co7iimued. 
duty  of  trustees  as  to  leasing,  528. 

getting  rid  of  tenants,  528. 
arrears  of  rent,  528. 
accumulations  of  rent,  527. 
duty  of  trustees  under  special  power  of  leasing,  529. 
■what  leases  they  may  grant,  528. 
for  how  long  a  term,  528. 
of  what  lands,  628-530. 
upon  what  rent,  529,  530. 

duty  of  trustees  to  renew  leases  of  leaseholds,  531-538. 
where  not  bound  to  renew,  535. 
duties  of  trustees  between  tenant  for  life  and  remainder-man,  539- 

656. 
duty  of  trustees  for  payment  of  debtg  under  a  will,  557-567. 

to  pay  legacies,  568-575. 

for  raising  portions,  575-583. 

for  creditors,  585-602. 

for  infants,  603-624. 

for  married  women,  625-686. 

for  charitable  uses,  687-748. 

for  bondholders,  749,  763. 

for  sale,  764-787. 

in  the  application  of  purchase-money,  788-805. 
duty  as  to  signing  receipts,  806-815. 

E. 

EAR-MARK, 

meaning  of  the  term  as  applied  to  money,  837. 

what  is  a  sufficient  ear-mark,  127,  128,  837,  841. 
EDUCATION.     See  Charitable  Uses. 
EJECTMENT.     See  Actiox. 

action  of,  must  be  in  name  of  trustee,  17,  328,  520. 

when  may  be  in  name  of  cestui  que  trust,  17,  328,  520. 
ELECTION, 

if  trustee  purchases  in  his  own  name  with  trust  funds,  the  cestui  que 
trust  may  elect  to  taise  the  property  or  the  fund  with  interest,  128. 
EMPLOY, 

the  word  does  not  authorize  trustees  to  Invest  trust-money  in  trade, 
454. 
ENTREATING.     See  Implied  Trusts. 
EQUITABLE   CONSTRUCTION.     See  Constructive  Trusts. 

trusts  by,  231-247. 


INDEX.  609 

EQUITABLE   ESTATES, 

governed  by  the  same  rules  as  legal,  357,  377,  382,  3S3. 

illustrations  of  the  rule,  357. 

how  may  be  limited,  357. 

rule  in  Shelley's  Case,  358. 

reason  of  the  rule,  358. 

application  of  the  nde  in  equity,  358. 

equitable  estates  suly'ect  to  the  rule  against  perpetuity  the  same  as 

legal  estates,  378,  382,  3S3. 
in  what  manner  they  may  be  made  inalienable,  386  a,  386  6. 
curtesy  in.     See  Curtesy. 
dower  in.     See  Dower. 

an  equitable  estate  in  fee  may  be  created  without  the  word  heirs,  357. 
equitable  estates  may  be  transferred,  assigned,  and  conveyed,  102, 

227,  321. 
in  what  manner  equitable  estates  may  be  conveyed,  102. 
may  be  conveyed  to  new  trusts,  102. 

where  a  resulting  trust  may  be  established  in  an  equitable  estate,  150. 
a  person  defrauded  of  his  title  still  has  an  equitable  estate  in  the  land, 

227. 
vendor's  lien  not  an  equitable  estate  in  land,  234. 
EQUITABLE   POWERS,  488,  489.     See  Powers. 
EQUITY, 

growth  of  jurisdiction  in  England,  9. 

in  America,  9,  10. 
advantages  of  its  late  development  in  America,  11. 
whether  equity  has   an   inherent  jurisdiction   to   convert  an  infant's 

property  without  an  enabling  statute,  610. 
ESCHEAT,  325',  327. 
ESTOPPEL, 

at  law  a  trustee  is  responsible  if  he  signs  a  receipt,  416. 

in  e(piity  he  may  show  that  he   received  no   money,  but  signed  for 

conformity,  416. 
equity  rejects  estoppels,  416. 

but  trustees  may  be  estopped  to  deny  their  responsibilities,  417. 
ESTATE, 

party  defrauded  of  his  title,  still  has  an  estate  in  it  in  equity,  227. 

the  estate  of  trustees,  298-320. 

where  an  estate  given  to  trustees  will  vest  in  the  cestui  que  trust,  298. 

299,  304,  300,  308. 
where  the  estate  will  remain  in  the  trustees,  302,  303,  305,  307,  309- 

311. 
the  extent  of  the  estate  which  the  statute  of  uses  executes,  312. 
the  extent  of  the  estate  which  trustees  take,  313. 
where  the  courts  imply  an  estate  in  trustees,  313. 
VOL.  II.  39 


610  INDEX. 

ESTATE,  —  continued. 

■where  courts  enlarge  estates  in  trustees,  314-316. 

rules -which  determine  the  extent  of  the  estate  taken  by  trustees,  312- 

318. 
as  to  the  extent  of  the  estate  taken  under  a  deed  or  will  by  trustees, 

319,  320. 
■what  estate  cestui  que  trust  takes,  357. 
estates  in  the  hands  of  trustees  subject  to  the  same  incidents  as  if 

they  were  the  beneficial  owners,  321. 
equitable  estates  governed  by  the  same  rules  as  legal,  321,  357. 
EVIDENCE.     See  Parol  Evidence. 

what  necessary  or  admissible  to  establish  a  resulting  trust,  137-139. 
purchase  in  the  name  of  wife  or  child,  a  circumstance  of  evidence  to 

rebut  a  resulting  trust,  143. 
EXCHANGE, 

whether  a  power  of  sale  authorizes  an,  769. 
EXECUTED   TRUST.     See  Executory  Trusts. 
what  is,  359. 

void  if  it  transcends  the  limits  of  a  perpetuity,  390,  394, 
EXECUTION, 

lands  taken  in  execution  bound  by  the  trust,  15,  346. 

may  be  levied  upon  lands  conveyed  in  fraud  of  creditors,  149. 

where  a  bidder  upon  sale  on  execution  fraudulently  pretends  to  bid 

for  another,  215. 
EXECUTORS.     See  Administeators. 
are  trustees  for  next  of  kin,  94. 

their  right  to  deal  with  and  sell  the  assets,  224,  225,  809-814. 
where  purchases  from,  will  create  constructive  trusts,  224,  225,  810, 

811. 
cannot  sell  directly  or  indirectly  to  themselves,  205,  224,  225. 
good  faith  indispensable  to  sales  by,  224,  810. 
in  what  manner  may  sell,  224,  809. 
their  power  in  case  of  specific  legacies,  809,  811. 
when  an  executor  is  joint  legatee,  residuary  legatee,  or  otherwise 

interested,  809,  814. 
their  agents  accountable  to  them,  813. 
duties  of  an  executor  or  trustee,  264,  344. 
executor  of  a  trustee,  264,  ^4ii. 
executors  purchasing  in  their  own  names  with  money  of  their  estates 

creates  resulting  trust,  127. 
where  a  trust  results  upon  gifts  to  executors,  155. 
whether  an  executor  of  a  trustee  can  appoint  himself  trustee  under  a 

power,  297. 
whether  there  is  a  different  rule  in  law  and  equity  as  to  the  liability 

of  executors,  407. 


INDEX.  611 

EXECUTORS,  —  continued. 

what  will  sustain  a  plea  of  plene  administravit,  407. 

an  executorship  survives,  414. 

liability  of  coexecutors  for  the  acts  of  each  other,  421,  425. 

how  their  liability  is  affected  by  being  required  to  give  bonds, 
426. 

where  executor  is  also  trustee,  262. 
EXECUTORY  DEVISES,  377,  378,  380,  881. 
EXECUTORY  TRUSTS, 

distinction  between  executory  and  executed  trusts,  359. 

what  is  an  executory  trust,  359. 

in  executed  trusts  the  rules  of  property  govern,  359. 

in  executory  trusts  the  intention  of  tlie  settlor  governs,  359. 

an  executory  trust  is  one  yet  to  be  drawn  up  in  its  details,  from  cer- 
tain general  directions,  359. 

difference  between  executory  trusts  created  in  wills  and  in  marriage 
articles,  360. 

construction  of  marriage  articles,  361,  365. 

reasons  of  tlie  construction,  361. 

where  courts  will  reform  the  perfected  settlement  if  not  drawn  accord- 
ing to  this  construction  of  the  articles  or  will,  361,  365,  372. 

but  where  the  limitations  are  all  drawn  out  by  the  settlor  they  cannot 
be  altered,  372. 

the  application  of  the  rule  in  Shelley's  Case,  372. 

in  executory  trusts,  358,  361,  362. 

the  construction  of  executory  trusts  in  personal  propertj',  363. 

where  personal  property  is  to  be  settled  upon  the  same  trusts  as  real 
estate,  364. 

how  children  or  issue  will  take  in  such  cases,  363,  364. 

where  the  court  will  not  order  a  formal  settlement  to  be  drawn  out, 
364. 

what  provisions  will  be  inserted  in  a  formal  settlement,  364. 

construction  of  particular  articles  of  marriage,  365. 

construction  of  executory  trusts  arising  under  wills,  366. 

who  may  enforce  performance  of  executory  trusts  under  articles  of 
marriage,  365,  367. 

all  parties  coming  within  the  influence  of  the  consideration,  367. 

against  whom  executory  trusts  may  be  enforced,  368. 

construction  of  the  words  "  heirs,"  "  issue,"  and  "  heirs  of  the 
body  "  in  executory  trusts  under  marriage  articles,  352,  357,  361- 
363,  371. 

construction  of  the  same  words  in  executory  trusts  under  wills,  366, 
369-371. 

heirlooms,  under  executory  trusts,  373. 

what  settlement  will  be  made  of  them,  373. 


612  INDEX. 

EXECUTORY   TRUSTS,  —  coniinued. 

whether  settlements  will  be  ortl  ered  upon  a  tenancy  in  common,  or  in 
joint  tenancy,  364,  374. 

what  powers  may  be  inserted  in  a  settlement  under  an  executory 
trust,  375. 

settlements  under  executory  trusts  will  be  ordered  cy  pres,  376,  392. 

not  void  for  transcending  the  rules  against  perpetuities,  390. 
EXONERATION,  806. 
EXPECTANCY, 

may  be  assigned  in  trust,  68. 

a  naked  hope  cannot  be,  68. 

consideration  necessary,  102. 

sale  of  by  an  heir,  188. 

voluntary  trusts  cannot  be  created  in,  102. 
EXPENSES, 

right  of  trustees  to  be  reimbursed  for  their,  910. 

may  have  a  lien  for  their  expenses,  907. 

what  expenses  they  may  charge,  910-913. 
EXPRESS  TRUSTS,  24. 

cannot  be  proved  by  parol,  79. 

what  will  create,  82. 

need  not  be  created,  but  must  be  manifested  or  proved  by  writing,  79, 
83,  84. 

effect  of  answers  in  chancery,  84,  85. 

if  the  statute  is  not  insisted  upon,  answer  may  be  used  as  proof  in 
writing  of  the  trust,  84,  85. 

in  chattels  may  be  proved  by  parol,  86. 


F. 

FAILURE, 

of  trusts  declared  may  create  a  resulting  trust,  157-160. 

to  declare  trusts  may  create  resulting  trusts,  157-160. 
FATHER.     See  Advaxcement  ;  Parent  ;  Resultlng  Tkust. 
FEE, 

whether  trustees  take  a  fee  or  not,  312-320. 

equit-able  fee,  357-376. 
FEME   COVERT.     See  Married  Woman. 
FEOFMENT, 

nature  and  form  of,  74. 
FIDEI  COMMISSA,  2. 
FIDUCIARY, 

purchase  by,  in  his  own  name,  with  trust  fund  creates  a  resulting  trust 
for  the  beneficiaries,  127. 


INDEX.  613 

FOLLOW, 

right  of  the  cestui  que  trust  to  follow  the  trust  fund,  345,  828-842. 

when  the  purchaser  takes  trust  property  with  notice,  828-830. 

when  he  pays  no  consideration,  828. 

choses  in  action,  831. 

when  a  borrower  of  the  trust  fund  has  notice,  832. 

in  case  of  doubtful  equity,  833,  834. 

into  other  property  in  hands  of  trustees,  835,  836. 

identity  of  money,  4G6,  837. 

who  may  follow,  838. 

parol  evidence  may  follow,  839-841. 
FOREIGN, 

how  far  trust  can  be  engrafted  upon  property  in  a  foreign  jurisdiction, 
70-72. 
FORFEITURE, 

by  the  trustee,  325. 

by  the  ce.>^tui  que  trust,  327. 
FORISFAMILIATION, 

whether  trust  for  maintenance  continues  after,  118. 
FORMALITIES, 

what  required  in  the  creation  of  a  trust,  82. 

if  required  in  an  instrument  or  the  execution  of  a  trust,  they  must  be 
strictly  followed,  460,  461. 

whether  trustees  may  waive  mere,  476. 
FOUNDER  OF  A  CHARITY, 

visitatorial  power  in,  742,  743. 
FRANCHISE.     See  Trustees  for  Bondholders. 
FRAUD.     See  Constructive  Trust. 

cannot  be  defined,  169. 

a  descrijjtion  of,  169. 

court  of  equity  will  relieve  against,  169. 

will  prevent,  169,  170. 

various  kinds  enumerated,  171-225. 

may  be  proved  by  parol,  22G. 

in  cases  of  fraud,  parol  evidence  may  vary,  contradict,  alter,  control, 
or  destroy  written  instnnnents,  226. 

fraud  in  wife  or  child  in  procuring  a  conveyance  in  their  name  will 
defeat  the  presumption  of  an  advancement,  and  establish  a  result- 
ing trust,  148. 

property  conveyed  in  fraud  of  creditors  may  be  seized  by  them,  149, 
164,  165. 

fraud  by  persons  not  sui  Juris,  will  be  relieved  against,  170. 

where  one  buys  professing  to  act  as  agent  of  another,  172. 

where  acts  are  prevented  from  being  done  by  fraud,  181,  182. 

in  compromise  with  creditors,  212. 


614  INDEX. 

FRAUDS,   STATUTE  OF, 

cited,  78. 

form  and  construction  of  the  statute  in  the  different  States,  80,  81. 

■what  writing  will  satisfy  the  statute,  81,  82. 

what  signing  is  necessary,  83. 

resulting  trusts  not  within,  137. 

constructive  trusts  not  within,  226. 
FRAUDULENT, 

when  assignments  for  creditors  are  fraudulent,  590. 
FREEHOLD, 

trustees  of,  are  legal  owners  of,  526. 

actions  for,  must  be  in  name  of  trustee,  328,  520,  526. 

when  cestuis  que  trust  may  maintain  action  for,  328. 

when  trustees  are  entitled  to  possession  of,  329,  526. 

when  trustees  may  make  repairs  upon,  477,  526,  o-lO,  552. 

what  improvement  they  may  make,  and  when,  526. 

when  must  pay  taxes,  527. 

when  they  must  collect  the  rents,  528. 

when  they  may  lease  the,  484,  528. 

what  leases  they  may  make  of,  528. 

in  what  form,  528. 

at  what  rent,  528. 

for  what  term  of  time,  528,  529. 

what  expenses  they  may  incur,  528. 

where  there  are  special  powers  of  leasing,  529. 

special  power  must  be  strictly  followed,  529. 

whether  a  void  lease  of  freehold  can  be  confirmed  by  cestui  que  tnist, 
529. 

out  of  what  interest  a  lease  takes  effect,  529. 

when  court  may  set  aside  leases  of,  529. 

what  lands  a  power  to  lease  will  embrace,  530. 

meaning  of  the  power  to  lease  at  the  usual  rent,  530. 

when  the  power  is  to  make  a  lease  containing  the  usual  and  reason- 
able covenants,  530. 

how  other  powers  and  directions  in  respect  to  leases  will  be   con- 
strued, 530. 

when  trustees  may  occupy  the  freehold,  528. 


G. 

GENERAL  POWERS,  473. 

See  Powers. 
GIFT, 

voluntary  gift  of  trust  property  creates  a  constructive  tnist,  241. 


INDEX.  615 

GIFT,  —  continued. 

every  gift  supposed  to  be  beneficial  to  donee,  259. 

an  acceptance  presumed,  259. 
GRANDCHILD, 

when  settlements  extend  to  grandchildren,  580. 
GRANT, 

■whether  trustees  should  use  the  word,  786. 
GUARDIAN.     See  Constructive  Trust. 

cannot  purchase  estate  of  his  ward,  200. 

purchase  in  his  own  name  with  ward's  money  creates  a  resulting  trust, 
127. 

accountable  for  all  money  made  in  bis  office,  430. 


H. 

HARDSHIP, 

effect  of,  on  specific  performance,  176,  787. 

will  not  prevent  the  running  of  the  statute  of  limitations,  857. 
HEIR, 

not  excluded  from  a  resulting  trust,  151. 

whether  he  will  hold  upon  a  resulting  trust,  151. 

whether  an  heir  can  execute  a  trust  which  descends  to  him,  294,  340, 
344,  '491,  492,  495,  496,  504. 

or  a  power,  294,  340,  491,  492,  495,  496,  504. 

heir  of  surviving  trustee  takes  the  trust  property,  344. 

duty  of  the  heir  in  respect  to  a  trust  estate,  344. 
HEIRLOOMS, 

limitation  of  heirlooms,  373. 

schedule  of,  when  given  to  tenant  for  life,  541. 

when  security  must  be  given  for,  541. 

where  must  be  used,  542. 
HEIRS, 

the  word  "  heirs  "  not  necessary  to  create  an  inheritance  in  trustees, 
315. 

whether  heirs  can   execute  powers,  294,  340,  491,  492,  495,  496, 
604. 

sale  of  their  expectancy  by  heirs,  188. 

construction  of  the  word  in  executory  trusts,  357-359,  363,  366,  369, 
371,  372. 
HEIRS  OF  THE   BODY,  357,  358,  361,  ,363,  366,  369,  371,  372. 
HOPING.     See  Impukd  Trust;   Precatory  Words. 
HOUSEHOLD   GOODS, 

where  and  how  to  be  used  by  tenant  for  life,  542. 
'HOUSE  PROPERTY,  542. 


616  INDEX. 

HUSBAND, 

if  husband  purchase  in  liis  own  name  with  separate  property  of  his 

wife,  a  trust  results,  127. 
but  not,  if  purchase  is  made  from  her  earnings  or  savings  from  an 

allowance  to  her,  127. 
no  trust  results  to  husband  from  a  purchase  in  name  of  wife,  143. 
rights   at  common   law  of  a  husband   in  his   wife's  property,   623, 

626. 
when  a  husband  is  an  implied  trustee  of  his  wife's  separate  property, 

647,  666. 
HUSBANDRY   LEASES, 

trustees  may  make,  of  farming  lands,  484,  528. 


IDENTIFICATION  OF  TRUST  FUND,  127,  128,  463,  837-842. 
IDIOT.     See  Lunatic.  . 

IGNORANCE.    See  Constructive  Trusts. 

relief  from  conveyances  made  in  ignorance  of  right,  184. 

must  be  ignorance  of  some  matter  of  fact,  and  not  of  law,  184. 

one  ignorant  of  his  rights  is  not  barred  of  his  remedy  by  lapse  of 
time  or  the  statute  of  limitations,  230,  861. 
ILLEGAL   CONTRACTS,  214. 

constructive  trusts  may  arise  from,  214. 
ILLEGAL  TRUST.     See  Unlawful  Trusts. 
ILLEGITIMATE   CHILD, 

may  be  a  cestui  que  tnist  if  already  begotten,  66. 

to  be  thereafter  begotten  cannot  be  cestui  que  trust,  66. 

purchase  in  the  name  of,  creates  resulting  trust,  144. 
IMAGINARY  VALUES, 

trustees  will  not  be  liable  for,  847. 
IMBECILITY.     See  Constructive  Trusts. 

effect  upon  contracts  or  deeds,  189-192. 
IMMORAL   CONTRACTS,  214. 

constructive  trusts  may  arise  from,  214. 
IMMORAL  TRUSTS,  66. 

See  Unlawful  Trusts. 
niPEACHABLE  DEEDS, 

trustees  may  safely  act  upon  them  until  impeached,  926. 
IMPERATIVE   POWERS, 

are  trusts,  and  must  be  executed,  249. 

courts  will  execute  them,  249-258. 

and  how,  249-258. 
IMPERFECT  RIGHTS,  173. 


INDEX.  617 

BIPERTTXENT, 

to  cliarge  trustees  with  general  malice  is,  275. 
IMPLIED   TRUST,  112-123,  131,  248-258. 

definition  of,  25,  112. 

may  arise  out  of  contracts,  112,  122,  342. 

from  construction  of  wills,  112,  121. 

from  what  words  trusts  may  be  implied,  112,  117. 

words  from  which  no  trust  is  implied,  113,  119. 

the  principles  upon  which  trusts  are  implied,  114. 

implied  trusts  arise  from  a  presumed  intention,  114. 

precatory  words  will  not  create  a  trust  contrary  to  the  intention  of 
the  parties,  114. 

trust  not  implied  if  repugnant  or  inconsistent,  115. 

an  absolute  gift  not  to  be  cut  down  by  implication,  115. 

recommendation,  a  flexible  term,  115. 

trust  not  implied  when  court  could  not  administer  it,  116. 

nor  when  the  amount  of  the  property  is  uncertain,  IIG. 

or  the  cestui  que  trust  is  uncertain,  116. 

trust  not  implied  if  there  is  no  obligation,  116. 

nor  from  a  mere  power,  116. 

may  be  implied  from  gifts  to  parents  for  maintenance  of  children, 
117. 

no  trust  implied  from  the  mere  statement  of  a  motive,  117,  119. 

how  implied  trusts  for  maintenance  are  administered,  118,  120. 

may  be  implied  from   conditions    or  limitations   annexed   to  gifts, 
121. 

no  trust  implied  from  a  direction  to   employ   a  particular  person, 
123. 

trusts  may  be  imi)lied  from  the  provisions  of  a  will  when  no  estate  is 
given  to  trustees,  121. 

a  direction  to  sell  without  naming  a  trustee  or  person  to  sell,  creates 
an  implied  trust  in  the  heirs,  121. 
IMPROVEMENTS, 

when  trustee  may  be  allowed  for,  526. 

who  entitled  to,  546. 

trustees  cannot  use  or  invest  any  part  of  an  infant's  money  in  making 
improvements  on  real  estate,  6(16. 

a  trustee  using  his  own  money  in  improving  an  infant's  estate  cannot 
recover  it  back,  60(5. 
INABILITY   TO   SUPPORT   CHILDREN, 

what  is,  613. 
INACTIVITY, 

no  such  thing  as  an  inactive  or  passive  trustee,  266,  411. 
INADEQUACY   OF   CONSIDERATION, 

how  far  evidence  of  fraud,  163,  187. 


618  INDEX. 

INCAPACITY,  189-192,  292. 

meaning  of,  292. 

incapacity  of  cestui  que  inist,  477,  521. 
INCIDENTS  OF  THE  TRUST  ESTATE, 

in  the  hands  of  trustees,  321-355. 
INCOME, 

first  year's  income,  550,  551  n. 
INCREASE, 

of  stock  upon  a  farm,  546. 
INCUMBRANCE, 

where  tenants  for  life  or  other  cesfuis  que  trust  take  an  assignment  of 
incumbrances  to  themselves,  554. 
INCUMBRANCES, 

when  tenant  for  life  must  pay  the  interest  of,  554. 

when  tenant  for  life  pays  off  incumbrances  'and  takes  an  assignment 
of  them,  554. 
INDEMNITY, 

when  trustees  may  require  against  payments,  922,  925,  928. 

may  require  indemnity  against  costs,  330. 

decree  of  court  is  an  indemnity,  924,  928. 
INFANTS, 

can  create  trusts,  but  they  may  be  avoided,  33. 

whether  contracts  of  infants  are  void  or  voidable,  33,  52. 

in  case  of  death,  33. 

whether  a  female  infant  can  execute  a  marriage  settlement,  34. 

she  may  bar  herself  of  dower,  &c.,  34. 

may  settle  her  personal  estate  if  it  would  go  to  her  husband,  34. 

can  take  in  trust,  54. 

how  can  execute  a  trust,  52,  54,  55. 

can  execute  powers  not  coupled  with  an  interest,  52. 

or  merely  ministerial  powers,  52. 

or  where  it  is  provided  that  infants  may  execute  them,  52. 

can  do  no  act  requiring  discretion,  52,  53.  • 

can  execute  no  power  coupled  with  an  interest,  52,  53. 

cannot  take  advantage  of  their  disability  to  commit  a  fraud,  53. 

are  under  sjjecial  protection  of  court,  603. 

how  the  money  of  infants  must  be  invested,  604. 

infant's  personalty  cannot  be  converted  into  realty,  and  vice  versa, 
605-607,  610. 

origin  of  the  rule,  605. 

courts  do  not  regard  the  interests  of  an  infant's  representatives,  605. 

infant's  money  cannot  be  expended  in  making  improvements  upon  his 
real  estate,  606,  607. 

exceptions  to  the  rule,  606,  607. 

infant's  lands  may  be  leased,  608. 


INDEX.  619 

INFANTS,  —  confimiecl. 

leases  should  not  extend  beyond  the  infancy,  608. 

infant's  real  estate  cannot  be  sold  without  license  of  court,  G07-609. 

court  will  not  sanction  a  sale  already  made,  009. 

whether  a  court  of  equity  has  an  inherent  power  to  order  a  conver- 
sion ot  an  infant's  real  estate,  610. 

reasoning  upon  such  power,  610. 

power  of  courts  of  probate,  610. 

and  of  the  legislature,  610. 

powers  of  courts  of  equity  under  statutes,  GIO. 

interests  of  persons  not  in  being  may  be  sold,  610. 

proceedings  in  such  cases,  610. 

when  courts  of  equity  will  not  allow  an  infant's  interests  to  be  sold, 
610. 

power  of  conversion  of  infant's  property  under  the  provisions  of  trust 
instruments,  610. 

if  an  infant's  lands  are  converted,  the  proceeds  remain  real  estate, 
611. 

but  on  coming  of  age  they  become  personal,  611. 

in  what  cases  realty  continues  realty  and  personalty  continues  per- 
sonalty though  converted,  611. 

a  father  bound  to  maintain  his  children,  612,  61.3,  61.5. 

trustees  caimot  apply  income  to  the  maintenance  of  infants,  612. 

when  there  are  provisions  for  maintenance  in  the  trust  instrument, 
612. 

when  there  is  a  marriage  settlement,  612. 

wlibn  the  father  is  unable  to  support  his  children,  612,  613,  615. 

meaning  of  his  inability,  615. 

a  steplather  not  bound  to  maintain  his  wife's  children,  613. 

nor  a  mother  her  own  children,  61.'). 

when  they  may  have  maintenance  if  tiie  trustees  can  pay  it,  613. 

a  father  is  not  compelled  to  maintain  children  taken  from  him  by 
decree  of  court,  613. 

an  inquiry  is  directed  as  to  the  ability  of  the  father,  613,  614. 

what  circumstances  will  be  incpiired  into,  61-1,  615. 

property  of  his  wife  not  material,  (\H. 

what  considerations  will  govern  the  maintenance,  its  amount  and 
manner,  614,  615. 

proceedings  to  obtain  a  decree  of  maintenance,  615,  617. 

what  expenses  of  maintenance  will  be  allowed  in  the  absence  of  an 
order,  615. 

what  expenses  will  be  allowed  upon  a  decree,  615. 

difference  between  allowance  for  past  and  future  expenses,  615. 

a  father  will  not  be  allowed  past  expenses,  615. 

the  amount  allowed  cannot  be  exceeded  by  the  trustee,  615. 


620  INDEX. 

INFANTS,  —  continued. 

where  there  is  a  direction  for  accumulation,  615. 

where  the  maintenance  will  continue  after  majority  and  after  mar- 
riage, 615. 

when  it  will  cease,  615. 

maintenance  not  confined  to  the  income  of  a  year,  615. 

distinction  between  property  from  a  parent  and  from  a  stranger,  616. 

from  what  funds  of  interests  maintenance  will  be  ordered,  615,  616. 

where  the  interest  is  contingent  or  residuary,  616. 

where  the  fund  is  given  over,  616. 

trustees  cannot  break  in  upon  the  capital  fund  of  an  infant,  618. 

if  they  do  so,  their  accounts  not  allowed,  618. 

reasons  of  the  rule,  618. 

whether  courts  can  decree  payments  from  the  capital  fund,  618. 

for  what  purposes  they  will  order  advancements,  618. 

if  there  are  limitations  over,  advancements  cannot  be  ordered,  619. 

various  exceptions,  619. 

where  a  person  is  entitled  to  receive  the  income  to  support  the  chil- 
dren, 620. 

duties  and  rights  as  to  support,  620. 

duties  and  rights  of  the  trustees,  620. 

maintenance  when  the  infant  is  abroad,  623. 

proceedings  in  such  cases,  623. 

if  fund  small,  court  may  order  the  whole  sum  to  be  paid  to  the  j^ar- 
ent  abroad,  620. 

rights  and  remedies  of  an  infant  the  same  as  an  adult  for  breach  of 
trust,  621. 

what  rights  and  remedies  they  may  have  in  various  cases,  621. 

trustees  must  accumulate  all  infant's  income  not  allowed  for  mainten- 
ance, 622. 

where  there  particular  directions  to  accumulate,  622. 

trustees  cannot  pay  money  directly  to  infants,  624. 

must  pay  to  guardians,  624. 

infant's  receipts,  624. 

in  case  of  fraud  by  infants,  624. 

courts  may  order  small  sums  to  be   paid  to   parent  of  infants  or  to 
other  persons,  624. 

where  the  instrument  of  trust  directs  payments  to  be  made  to  infants, 
624. 
INFLUENCE, 

all  a  trustee's  power  and  influence  must  be  used  for  the  profit  of  the 
trust,  429. 
INFORMATION, 

by  the  attorney-general  in  case  of  breach  of  charitable  trusts,  732, 
744. 


INDEX.  621 

INHABITANTS, 

trust  for  poor  inhabitants  of  a  place  good,  698,  699. 
INHERITANCE, 

whether  trustees  take  an  inlieritance  or  not,  312-320. 
INJUNCTION, 

remedy  against  corporations,  42. 

courts  cannot  grant  injunctions  against  proceedings  in  the  courts  of 

the  United  States,  or  other  jurisdictions,  72. 
ceshii  que  trust  may  have,  against  trustees  to  prevent  breaches  of 

trust,  816. 
other  parties  may  also  have  an  injunction,  816. 
for  what  reasons,  816. 
INQUIRIES, 

as  to  ability  of  a  father  to  maintain  his  children,  613,  614. 
INSOLVENCY.     See  Bankruptcy. 
INSOLVENT.     See  Bankruptcy. 
INSPECTION, 

right  of  cestui  que  trust  to  inspection  of  books  and  papers  of  trustees, 
821-823. 
INSURANCE, 

trustees  may  insure,  487,  553. 
where  tenant  for  life  insures,  487,  553. 
where  remainder-man  insures,  487,  553. 
where  mortgagor  insures,  487. 
INTENTION, 

mere  intention  to  create  a  trust  not  good,  97. 
how  intention  carried  out  in  executory  trusts,  357-361. 
a  rule  of  property  controls  intention,  298,  358. 
statute  of  uses  controls  intention,  298. 
rule  in  Shelley's  case,  358. 
INTEREST, 

when  trustees  must  pay  interest  for  moneys  in  their  hands,  468-472. 
general  principle  upon  which  they  must  pay  interest  for  any  neglect 

of  duty  or  bi'each  of  trust,  468. 
where  they  delay  unreasonably  to  invest,  468. 
or  mingle  the  trust  money  with  their  own,  468. 
or  deposit  in  bank  in  their  own  name,  468. 
or  neglect  to  settle  tlieir  accounts  or  pay  over  the  money,  468. 
or  neglect  to  invest  in  a  fund  directed  within  the  proper  time,  469. 
where  the  investments  are  improperly  sold  out,  470,  471. 
or  embark  the  fund  in  trade,  471. 
'    where  the  money  is  brought  into  court,  468. 
where  the  sums  are  too  small  to  invest,  468. 
how  the  accounts  will  be  taken,  468. 
where  the  trustee  obtains  unsurious  interest,  468. 


622  INDEX. 

INTEREST,  —  continued. 

or  any  other  extra  profit,  4G8. 

where  there  is  a  direction  to  invest  in  stocks  or  real  estate,  469. 

where  the  cestui  qne  trust  may  have  dividends  upon  particular  stocks 
directed  to  be  purchased,  or  legal  interest  on  the  fund,  or  the  profits 
made  by  the  breach  of  trust,  4G9-471. 

if  profits  are  taken,  they  must  be  taken  for  the  whole  time,  471. 

where  a  trustee  refuses  to  account  for  the  profits  of  his  trade,  or  can- 
not, 471. 

where  compound  interest  will  be  charged  to  a  trustee,  471. 

the  principle  upon  which  compound  interest  is  given,  471. 

where  the  trustee  is  ordered  to  invest  in  a  particular  manner  and  to 
accumulate  the  income,  he  must  pay  compound  interest,  472. 

an  inquiry  will  be  ordered  to  ascertain  the  amount  of  the  accumula- 
tion as  if  the  direction  had  been  followed,  472. 

where  the  court  orders  the  trustee  to  invest  a  fund  during  the  litiga- 
tion, 472. 

when  interest  is  payable  upon  legacies,'  575. 

when  interest  is  payable  upon  portions,  584. 
INTERESTED   PERSON, 

as  trustee,  59. 
INTRUDER, 

not  bound  by  a  trust,  241. 
INVESTMENT, 

duty  of  trustees  to  invest,  452. 

must  follow  the  directions  of  the  trust  instrument  if  there  are  any, 
452. 

or  they  must  be  governed  by  the  statutes  or  rules  or  orders  of  courts, 
452. 

in  the  absence  of  all  these,  there  must  be  good  faith  and  a  sound  dis- 
cretion, 452. 

cannot  invest  in  personal  securities,  453. 

if  power  is  given  in  the  instrument  to  invest  in  personal  securities,  it 
is  strictly  construed,  and  must  be  strictly  followed,  453. 

investments  cannot  be  made  in  trade  or  speculation  or  manufacturing, 
454,  464. 

responsibility  of  trustees  for  such  investments,  454,  464. 

construction  when  trustees  are  authorized  to  continue  testator's  busi- 
ness, 454. 

where  cestuis  que  trust  desire  such  continuance,  454. 

in  what  investments  may  be  made  in  England,  455. 

rules  in  several  States,  and  remarks  upon  the  rules,  456,  459,  460. 

whether  a  trustee  may  change  such  investments,  459. 

power  and  duty  of  trustees  as  to  investment  in  real  mortgages,  457, 
458. 


INDEX.  623 

INVESTMENT,  —  coniinued. 

what  is  a  real  mortgage,  or  real  security,  458,  460. 

trustees  cannot  subscribe  trust  money  to  new  and  experimental  enter- 
prises, 459. 

where  the  trust  instrument  directs  the  investments,  460,  461. 

construction  of  various  directions,  460,  461. 

sucli  directions  must  be  strictly  followed,  460,  461. 

even  i'ormalities  must  be  complied  with,  4G0. 

how  a  change  of  circumstances  may  affect  such  directions,  460,  461. 

a  failure  to  comply  with  the  directions  will  render  trustees  liable  for 
a  loss  although  they  use  good  faith,  460,  461. 

where  trustee  is  to  invest  at  his  discretion,  460. 

trustees  cannot  lend  money  to  themselves,  nor  to  one  of  their  num- 
ber, 461,  464. 

trustees  must  invest  moneys  within  a  reasonable  time,  462. 

liable  for  interest  and  for  loss  from  any  delay,  462. 

what  is  a  reasonable  time,  462. 

three  months,  six  months,  and  one  year  have  been  considered  rea- 
sonable according  to  circumstances,  462. 

trustees  and  guardians  are  allowed  a  shorter  time  than  executors,  462. 

reasons  for  the  difference.  4G2. 

trustees  must  not  mix  their  own  money  with  trust  money  in  invest- 
ments, 463. 

reasons  for  the  rule,  463. 

if  trustees  make  investments  through  brokers,  or  third  persons,  they 
must  personally  see  that  the  investments  are  properly  made,  463. 

must  not  pay  trust  money  into  bank  in  tiieir  own  names,  463. 

rule  by  which  the  trust  money  is  traced  in  such  case,  463. 

trustees  cannot  invest  the  money  in  trade  or  business,  nor  loan  it  for 
trade  or  business  to  a  firm  of  which  they  are  members,  nor  in  anv 
way  indirectly  for  themselves,  464. 

where  a  trader  will  be  presumed  to  have  used  the  money,  464. 

whether  there  is  a  difference  between  investments  made  by  trustees 
or  contbmed  by  trustees,  465. 

where  there  are  special  directions  in  the  will  trustees  may  continue 
investments,  465. 

what  degree  of  diligence  they  must  use  in  watching  such  investments, 
465. 

their  duty  upon  a  change  of  circumstances,  465. 

the  investments  made  by  a  testator  may  justify  investments  by  trus- 
tees where  there  is  no  statute,  465. 

what  investments  trustees  for  infants  may  make,  604. 

where  trustees  may  vary  the  investments,  466. 

their  liability  where  they  improperly  ciiange  the  investments,  440, 
466. 


624  INDEX. 

INVESTMENT,  —  continued. 

general  rule  as  to  changing  the  investments,  466. 

where  the  consent  or  acquiescence  of  the  parties  to  an  improper 
investment  will  protect  the  trustees,  467. 

who  can  acquiesce,  464. 

who  cannot,  464. 

what  will  be  an  acquiescence,  and  what  not,  467. 

will  not  be  presumed  from  mei'e  lapse  of  time,  467. 

where  there  is  tenant  for  life  without  impeachment  of  waste,  invest- 
ments should  not  be  made  in  wood  or  timber  lands,  776. 
IRREGULARITY, 

of  an  appointment  of  trustees  will  not  make  it  void  in  a  collateral 
proceeding,  275,  282. 

nor  will  the  court  remove  for  mere  irregularity  in  the  appointment, 
277. 

a  stranger  or  wrong-doer  cannot  object  to  irregularity  of  sale,  782. 
IRREVOCABLE, 

when  deeds  in  trusts  for  creditors  are,  593,  594. 
ISSUE, 

construction  of  the  word,  361,  366. 


JOINT   OFFICE   OF   TRUSTEES,  411. 
JOINT  PURCHASE,  136. 
JOINT   TENANTS, 

courts  construe  trustees  into  joint  tenants,  if  possible,  343. 

trustees  are  generally  joint  tenants,  343,  374. 

but  courts  construe  every  other  case  into  a  tenancy  in  common  if  pos- 
sible, 636. 

how  each  may  act  in  collecting  rents  and  other  moneys  of  a  trust,  415, 
416. 
JOINT  TENANCY, 

in  cases  of  doubt  courts  construe  a  joint  tenancy  in  trustees,  343. 

but  generally  courts  construe  a  tenancy  in  common,  if  possible,  136, 
374. 

the  trust  survives  to  the  survivors,  343. 

the  heir  of  a  deceased  trustee    cannot   interfere   with  a  cotrustee, 
343. 
JOINTURE, 

cannot  be  inserted  in  settling  an  executory  trust  under  the  phrase 
"  usual  powers,"  375. 
JUDGMENT, 

form  of,  against  married  women.     See  Married  Women. 


INDEX.  625 

JURISDICTION, 

court  may  enforce  a  trust  against  a  foreigner,  70. 

and  over  land  in  trust  in  a  foreign  country,  71. 

if  the  trustee  is  within  the  juri.sdiction,  72. 

how  courts  enforce  suciv  ti'usts,  71. 

when  a  will  is  proved  in  one  jurisdiction,  71. 

courts  have  jurisdiction  to  make  a  settlement  upon  a  wife  though  the 

■property  is  in  a  foreign,  6'dl. 
of  courts  of  equity  in  cases  of  fraud,  167. 

K. 

KING.     See  Sovereign;  State;  United  States. 
may  create  a  trust,  29. 
may  be  a  trustee,  40. 

L. 

LACHES, 

courts  will  not  enforce  resulting  trusts  after  great  lapse  of  time,  141. 

child  cannot  wait  until  parent's  death  to  impeach  a  conveyance  by 
itself  to  its  parent,  201. 

will  bar  the  remedy  in  cases  of  constructive  trusts,  228-230. 

there  can  be  no  laches  where  tlie  fraud  is  unknown  or  concealed,  230. 

what  will  not  excuse  delay  or  laches,  230. 

what  length  of  time  will  be  laches,  228-230,  815,  850,  869. 

diligence  required  in  all  cases  of  fraud,  228. 

a  party  cannot  be  guilty  of  laches  until  his  interest  falls  into  posses- 
sion, 850,  800. 

nor  until  he  has  knowledge,  850. 

is  not  bound  to  inquire,  850. 

has  a  right  to  presume  that  trustee  does  his  duty,  850. 
LAND, 

if  real  estate  of  an  infant  is  sold,  it  remains  real  estate  until  he  becomes 
of  age,  606,  611. 
LAPSE  OF   TLME, 

what  acts  will  be  presumed  after  a  great,  866. 

ground  of  the  presumption,  866-869. 

presumptions  are  favored  at  law,  860. 

may  be  rebutted,  866. 

when  the  presumptions  cannot  be  made,  866,  867. 

lapse  of  time  must  be  pleaded  or  answered,  868. 

when  relief  will   be  refused  after  a  lapse  of  time  on  the  ground  of 
public  convenience  or  policy,  815,  869,  870. 
LAPSED   LEGACY, 

when  a  resulting  trust  arises  from,  160. 
VOL.  II.  40 


626  INDEX. 

LAWFUL  TRUSTS.     See  Express  Trusts  ;  Unlawful  Trusts. 
LEASE.     See  Freehold  ;  Leaseholds. 

general  powers  of  trustees  to  lease  lands,  48-4,  528,  608. 

upon  what  rent  and  for  what  term  of  years,  481,  528,  529. 

special  powers  of  leasing  must  be  strictly  followed,  529. 

construction  of  special  powers  to,  529. 

what  lands  the  powers  will  embrace,  530. 

when  special  terms  of  time  are  named,  530. 

trustee  cannot  renew  lease  in  his  own  name,  196. 

lease  of  mines,  &c.,  530. 

whether  s^hould  grant  leases  without  impeachment  of  waste,  530. 

what  kind  of  leases  should  make  of  infant's  land,  608. 
LEASEHOLD, 

duty  of  trustees  to  convert  leaseholds,  449,  450,  531,  547. 

duty  of  trustees  to  renew  leases  of  leaseholds,  532. 

the  duty  is  implied  in  the  absence  of  express  directions,  532. 

a  discretionary  power  to  renew  construed  into  an  imperative  direc- 
tion, 532. 

court  will  decree  the  insertion  of  a  direction  to  renew  in  a  settlement 
drawn  under  its  order,  532. 

liability  for  neglecting  to  I'enew,  534. 

rights  and  duties  as  to  renewal  between  tenants  for  life  and  remainder- 
man, 533,  534. 

who  must  bear  the  expense  of  renewing  leases,  and  in  what  propor- 
tions, 534,  537. 

trustees  not  liable  for  neglecting  to  renew  when  there  is  any  illegality 
in  the  direction  to  renew,  535. 

right  to  renew  is  a  valuable  right,  and  compensation  may  be  obtained 
for  being  deprived  of  it,  638. 

trustee  cannot  renew  in  his  own  name,  196,  538. 
LEASING,  POWER  OF.     See  Freehold  ;  Lease. 

special  powers  of  leasing  strictly  construed,  528. 
LEAVE   OF   COURT,  607,  609,  696. 

must  be  had  before  trustees  expend  an  infant's  money  in  improve- 
ments on  land,  606,  607,  609. 

must  be  had  before  trustees  can  do  any  act  if  trust  is  in  suit  before 
court,  474. 
LEGACIES, 

trusts  for  the  payment  of,  568,  576. 

how  legacies  are  payable,  568. 

when  they  are  charged  upon  real  estate  the  heir  or  devisee  becomes 
a  trustee  for  their  payment,  568. 

where  a  trust  is  created  in  express  words  to  pay  legacies,  569. 

what  words  will  charge  real  estate  with  legacies  and  create  a  trust 
for  their  payment,  and  what  will  not,  569,  570. 


INDEX.  627 

LEGACIES,  —  continued. 

what  legacies  are  to  be  paid  out  of  real  estate  exclusively,  571. 
where  some  legacies  are  charged  upon  the  real  estate  and  others  not, 

572. 
trusts  where  legacies  charged  on  land  are  paid  out  of  the  personal 

estate,  573. 
■what  setting  apart  or  payment  of  the  legacy  will  relieve  the  estate 

from  the  charge,  574,  576. 
twenty  years  creates  a  presumption  of  payment,  576. 
when  the  lands  charged  with  the  trust  can  be  followed,  576. 
whether  the  trust  is  barred  by  tlie  statute  of  limitations,  576. 
when  and  from  what  time  legacies  bear  interest,  575. 
LEGAL  ESTATE, 

to  create  a  trust  the  legal  estate  must  not  vest  in  cestui  que  trust,  298, 

304. 
when  the  legal  estate  will  remain  in  the  trustees,  301-307. 
when  the  legal  estate  will  not  remain  in  trustees,  301,  307,  309. 
when  the  legal  estate  will  vest  in  the  trustees,  and  when  not,  308- 

310. 
when  the  trustee  will  not  take  the  legal  estate,  but  a  collateral  power 

over  it,  308, 
when  the  trustee  has  any  active  duties  to  perform,  he  will  take  a  legal 

estate,  305. 
when  he  is  to  "  apply,"  or  "  permit,"  or  "  sufifer,"  305-307. 
where  a  charge  is  made  upon  an  estate  and  a  power  given  to  trustees 

to  defray  the  charge,  they  will  not  take  the  legal  estate,  308. 
when  the  trust  is  for  a  married  woman,  309. 

when  the  conveyance  is  for  the  "  use  of  the  trustees"  in  trust,  309. 
or  to  preserve  contingent  remainders,  309. 
or  several  trusts  are  created  some  of  which  require  an  estate  in  the 

trustees,  309. 
when  a  trustee  no  longer  has  any  active  duties  to  perform,  the  statute 

of  uses  will  transfer  his  estate  to  the  cestui  que  trust,  311. 
where  the  trustee  takes  a  legal  estate,  he  will  take  an  estate  adequate 

to  the  performance  of  the  trust,  312. 
if  an  inheritance   or  fee  is  necessary  he  will  take  the  fee,  though  no 

words  of  inheritance  are  in  the  instrument,  312,  317,  318,  320,  322, 

324,  325. 
if  the  trust  does  not  require  a  fee,  he  will  take  a  less  estate,  though 

words  of  inheritance  are  in  the  deed,  312,  316. 
if  a  trust  is  imposed  upon  trustees  wliich  requires  an  estate  in  tliem 

and  none  is  given,  the  court  will  imply  an  estate  in  them  sufficient 

for  the  trust,  313. 
whether  courts  will  enlarge  and  cut  down  estate  in  trustees  given  by 

wills  and  not  by  deeds,  319,  320. 


628  INDEX. 

LEGAL  INSTATE,  —  continued. 

legal  estates  in  the  hands  of  trustees  possess  the  same  incidents  and 
properties  as  if  tliey  were  the  beneficial  owners,  321. 

the  trustee  must  perform  the  duty  of  a  legal  owner,  326. 

possession  and  management  of  the  legal  estate,  328,  329. 

suits  for  the  possession  or  defence  of,  328. 

all  who  take  the  legal  estate  from  the  trustee  take  it  subject  to  the 
trust,  346. 

otherwise  with  purchaser  for  value  without  notice,  346. 
LEGAL   POWERS,  488. 

See  Powers. 
LEGAL  TITLE. 

See  Legal  Estate. 

all  who  take  the  legal  title  from  trustees  take  it  subject  to  the  trust, 
except  purchaser  for  value,  346. 

if  trustees  have  the  legal  title,  they  only  can  convey,  787. 
LETTER, 

may  prove  a  trust,  83. 
LIABILITY.     See  Accident  ;  Breach  of  Trust  ;  Cestui  que  Trust  ; 

Compound  Interest  ;  Cotrustees  ;  Executors  ;   Interest  ;   In- 
vestment ;  Robbery. 
LIEN, 

vendor's  lien  for  purchase-money,  in  the  nature  of  a  trust,  232. 

states  in  which  the  principle  prevails,  232  n,  233. 

reasons  of  the  doctrine,  232. 

the  doctrine  not  obnoxious  to  the  statute  of  frauds,  233. 

vendor's  lien  not  an  estate  in  the  land,  234-238. 

a  remedy  and  security  for  the  debt,  234-238. 

may  be  barred  by  the  statute  of  limitations,  234. 

distinction  between  a  lien  and  a  mortgage,  234. 

vendor's  lien  exists  although  the  deed  recites  the  consideration  as 
paid,  235. 

where  liens  will  not  exist,  235. 

if  the  consideration  is  not  money,  235. 

or  is  uncertain  or  unknown,  235. 

whether  the  lien  continues  if  security  is  taken,  236. 

a  question  of  intention  in  each  case,  236,  237. 

in  whose  favor  the  lien  will  continue,  238. 

against  whom  it  will  continue,  239. 

against  whom  it  will  not  continue,  239. 

what  notice  is  necessary  to  preserve  the  lien,  239. 

bankruptcy  or  death  does  not  affect  it,  231. 

lien  of  a  legatee  upon  land  charged  with  the  payment  of  legacies, 
576. 
LIFE.     See  Tenant  for  Life. 


INDEX.  629 

LIMITATION, 

equitable  and  legal  estates  may  be  limited  in  the  same  wa)',  357, 

377. 
construction  of  limitations  in  executed  trusts,  357-376. 
construction  of  limitations  in  executory  trusts,  357-376. 
of  personal  property,  3(54,  389. 
limitations  will  be  inserted  in  executory  trusts  cy  prts  the  dii-ections, 

876. 
when  a  limitation  creates  a  perpetuity,  377-385. 
limitation  over  in  case  of  bankruptcy  or  alienation,  388,  555. 
in  case  of  marriage  without  consent,  516. 
LIMITATIONS,  STATUTE  OF 

is  not  necessarily  a  bar  in  cases  of  constructive  trusts  arising  from 

fraud,  230. 
remedies  may  be  barred  in  such  cases  in  a  shorter  time,  230. 
the  limit  of  the  statute  is  sometimes  adopted  in  analogy,  230. 
time  does  not  bar  the  remedy  if  the  fraud  is  concealed,  230. 
what  length  of  time  will  be  laches,  228-230,  850. 
statute  of  limitations  applies  equally  in   law  and   in   equity,   855- 

857. 
whether  the  neglect  of  the  trustee  for  the  time  limited  in  the  statute 

can  bar  the  rights  of  the  cestui  que  trust  against  third  persons, 

858,  859. 
statute  runs  as  between  strangers  and  trustees,  858,  859. 
when  the  trustee  is  barred  by  the  statute  cestui  que  trust  is  also  barred 

against  strangers,  858,  859. 
but  a  person  who  has  possession  of  the  fund  by  a  breach  of  the 

trust  with  notice  cannot  set  up  the  statute  against  the  cestui  que 

trust,  230,  836,  859,  860. 
statute  does  not  run  so  long  as  cause  of  action  is  concealed,  861. 
nor  until  the  interest  of  a  party  falls  into  possession,  800. 
nor  while  a  party  is  under  disability,  SCO,  864:. 
whether  the  statute  runs  from  notice  of  the  cause  of  action,  or  from 

time  of  the  cause  of  action,  861. 
statute  does  not  run  between  trustee  and  cestui  que  trust  while  the 

trust  continues,  863. 
whether  a  trustee  can  repudiate  the  trust,  and  hold  the  property  under 

a  claim  of  his  own,  863,  864. 
when  the  statute  begins  to  run  in  such  case,  864. 
statute  does  not  run  between  co-cestuis  que  trust,  863. 
a  resultiftg  or  constructive  trust  is  not  a  trust  until  established  by 

decree  of  court,  865. 
statute  runs  against  such  claims,  860,  865. 
the  statute  may  be  taken  advantage  of  by  demurrer  when  the  facts 

appear  upon  the  face  of  the  bill,  862. 


630  INDEX. 

LIMITATIONS,   STATUTE  OF,  — eontinued. 

if  there  is  no  demurrer,  nor  plea,  nor  an;j\ver  of  the  statute,  it  cannot, 
be  set  up  at  the  hearing,  862. 

effect  of  the  statute  upon  legacies,  576. 
LIS    PENDENS.     See  Leave  of  Court. 

is  constructive  notice  to  purchaser,  223. 
LIVERY   OF   SEISIN,  74. 
LOAN, 

no  trust  will  result  to  secure  a  loan,  133. 

if  a  purchaser  loans  money  and  takes  a  title  to  himself,  a  trust  will 
result,  133. 
LOAN  TO   A  BORROWER  WITH  NOTICE.     See  Borrower. 
LONG  ANNUITIES.     See  Annuities. 
LOTS, 

where  trustees  for  sale  may  sell  in  lots,  776. 

cannot  split  an  estate  up  into  timber,  mines,  and  land,  774. 
LUNATIC, 

whether  he  can  create  a  trust,  36. 

msLj  take  property  in  trust,  56. 

how  may  execute  a  trust,  56. 


M. 

MAINTENANCE.     See  Implied  Trusts. 

where  a  gift  to  parents  to  maintain  children  creates  a  trust,  117. 

construction  of  such  gifts,  117-120, 

how  such  trusts  are  administered,  118-120. 

how  long  the  maintenance  continues,  118,  615. 

a  father  bound  to  maintain  his  wife  and  children  if  able,  612. 

trustee  cannot  apply  infant's  income  to  maintenance,  612. 

although  the  instrument  of  trust  directs  it,  612. 

power  of  the  court  to  order  maintenance  out  of  the  income,  612. 

how  the  court  proceeds  in  ordering  maintenance,  612-617. 

principles  upon  which  maintenance  will  be  ordered,  614,  615. 

from  what  property  it  will  be  ordered,  615-617. 

trustees  cannot  break  in  upon  the  principal  for  maintenance,  618, 
619. 
MAJORITY, 

in  a  public  trust  a  majority  may  act,  413. 

otherwise  in  private  trust  unless  express  directions  are  given  in  the 
instrument,  413. 
MANAGEMENT.     See  Powers. 
MARRIAGE.     See  Husband  ;  Married  Women. 

a  valuable  consideration,  110,  220. 


INDEX.  631 

MARRIAGE,  —  continued. 

procured  by  false  representations  may  create  a  constructive  trust, 

208. 
fraudulent  conveyances  by  man  or  woman  upon  the  point  of,  213. 
contracts  for  procuring,  illegal,  214. 

conveyances  after,  in  pursuance  of  agreements  before,  220. 
MARRIED   WOMEN.     See  Answer;  Plkading. 

how  and  in  what  property  may  create  trusts,  32. 

may  be  trustees,  48,  51. 

how  far  can  execute  trusts,  49,  51. 

may  execute  collateral  powers,  32,  49,  50. 

regarded   as   sole   in  respect  to   their   separate   property,    32,    50, 

61. 
inconveniences  arising  from  married  women  trustees,  50,  51. 
rights  of  the  husband  at  common  law  to  his  wife's  property,  625,  626, 

646. 
reason  of  the  law,  625,  637. 
(Jefects  of  the  common  law,  625. 
rights  of  the  husband  in  property  given  upon  a  simple  trust  for  his 

wife,  626. 
to  perfect  his  right  there  must  be  a  reduction  to  possession,  626. 
the  right  of  a  wife  to  a  settlement  out  of  her  property,  627. 
the  right  is  founded  upon  the  practice  of   the  court  and  cannot  be 

determined  by  a  priori  reasoning,  627,  631. 
general  statement  of  the  wile's  right,  627. 
for  whom  she  may  claim  the  settlement,  627,  645. 
she  must  claim  her  sfettlement  before  reduction  to  possession  by  her 

husband,  628. 
when  a  settlement  will  be  ordered,  although  the  property  is  in  his 

hands,  627. 
wife  may  claim  a  settlement  by  original  bill,  or  she  may  intervene  in 

a  suit  pending  for  the  possession  of  the  property,  629. 
whether  she  can  make  a  claim  in  common  law  actions,  629. 
rights  and  duties  of  trustees  in  possession  of  the  wife's  property,  in 

respect  to  a  settlement,  630. 
when  a  man  marries  a  Avard  of  the  court  without  leave,  631. 
when  the  court  will  settle  all  the  ckoses  in  action  of  a  wife  on  herself, 

631. 
against  whom  a  settlement  can  be  enforced,  632. 
to  what  property  the  right  extends,  633,  634. 
when  a  settlement  will  be  made  out  of  her  life-estates,  and  when  not, 

634. 
if  one  settlement  is  made,  whether  another  will  be  ordered  or  not, 

635. 
what  amount  will  be  settled  upon  her,  636. 


632  INDEX. 

MARRIED   WOMEN,  —  continued. 

action  of  the  court  in  case  a  husband  refuses  to  make  a  settlement, 

637. 
distinction  between  a  settlement  and  survivorship  in  the  wife,  638. 
what  is  and  what  is  not  a  reduction  to  possession  by  a  husband  that 

bars  a  wife's  right  to  a  settlement  and  her  survivorship,  639-645. 
wife  may  waive  the  right  to  a  settlement,  627,  645. 
rights  of  her  children  in  the  settlement,  627,  645. 
right  of.  married  women  to  hold  separate  property,  646. 
origin  and  development  of  the  right,  646. 
an  express  trustee  not  necessary,  647. 
the  husband  shall  be  a  constructive  trustee  if  necessary  to  execute  the 

intention  of  a  settlor,  647,  652,  666. 
the  intention  to  create  a  separate  use  must  be  clear  and  certain,  647. 
what  words  will  create  a  separate  use  and  defeat  a  husband's  right, 

648,  650,  651. 
words  that  do  not  create  a  separate  use,  649-651. 
principles  of  construction  in  such  cases,  650. 
the  separate  use  must  be  for  the  wife  exclusively,  651. 
nature  of  a  separate  use,  652. 
in  what  manner  it  is  ambulatory,  652,  653. 
to  what  marriage  it  may  be  confined,  653. 
when  it  is  destroyed  by  the  death  of  a  husband,  652,  653. 
how  married  women  may  deal  with  their  separate  property,  654,  655. 
what  acts  she  may  perform,  285,  654. 
her  power  in  England  as  to  personal  property,  655. 
the  law  in  the  various  States,  655. 
in  some  States  she  has  an  absolute  power  of  disposal  unless  restrained, 

in  others  she  has  no  power  unless  it  is  given,  655. 
she  can  dispose  of  real  estate  in  trust  for  her  separate  use  only  in  the 

manner  pointed  out  in  the  instrument,  656. 
how  she  may  deal  with  the  income  of  it,  656. 

how  far  a  married  woman  may  contract  debts  in  relation  to  her  sepa- 
rate estate,  657,  668. 
the  nature  of  her  contracts  whether  in  the  nature  of  appointments  or 

not,  658,  659. 
the  general  principles  that  apply  to  her  contracts,  659. 
the  present  English  law  upon  her  contracts,  659,  660. 
the  law  in  the  various  States,  660,  661. 
no  judgment  or  decree  upon  her  contracts  can  be  given  against  a 

married  woman  personally,  662,  663. 
whether  a  judgment  or  decree  can  bind  the  corpus  of  her  estate,  or 

only  the  income,  662. 
the  death  of  her  husband  does  not  change  the  nature  of  her  contracts 

made  while  married,  662. 


INDEX.  633 

MARRIED   WOMEN,  —  continued. 

how  her  separate  property  is  reached,  662,  663. 

the  trustees  must  be  parties  to  the  suits,  602. 

where  her  separate  property  cannot  be  reached,  662,  603. 

no  charges  after  her  death  like  funeral  expenses  can  be  imposed  upon 

her  property,  663. 
savings  out  of  her  separate  property  or  out  of  the  income  follow  the 

principal,  604. 
rights  of  the  wife  against  her  husband's  estate  when  he  has  received 

the  income  of  her  property,  665. 
principles  upon  which  courts  act  in  such  cases,  665. 
if  the  husband  receives  the  capital  fund,  it  is  not  presumed  to  be  a 

gift,  600. 
when  a  married  woman  may  call  upon  her  trustees  to  convey  the 

property -to  her,  607. 
effect  of  marriage  upon  her  separate  property,  667. 
when  the  trustee  need  not  concur  in  a  disposition  of  the  estate  by 

her,  667. 
whether  she  can  give  the  property  to  her  husband,  or  pledge  it  for 

his  debts  and  her  rights,  067. 
married  woman  may  make  a  will   of  her  separate  estate,  unless  re- 
strained by  the  instrument  of  settlement,  668. 
if  no  will,  her  husband  takes  her  equitable  assets  in  the  same  manner 

as  her  legal  assets,  668. 
is  entitled  to  be  her  administrator,  668. 
when  a  married  woman  procures  her  trustees  to  commit  a  breach  of 

trust,  285,  669. 
when  a  married  woman  trustee  commits  a  breach  of  trust  or  waste, 

669. 
when  anticipation  is  restrained,  603,  670,  671. 
trusts  created  for  married  women  in  deeds  of  separation,  672-674. 
courts  will  not  enjoin  husband  and  wife  to  live  apart,  672. 
but  will  enforce  other  provisions  concerning  property  in  favor  of  the 

wife,  672. 
and  will  enjoin  litigation  and  annoyance  of  the  wife  by  the  husband, 

672. 
no  agreement  for  future  separation  will  be  noticed  by  courts,  672. 
there  must  be  trustees  in  deeds  of  separation,  673. 
Low  equity  treats  such  agreements,  073. 

powers  of  the  wife  in  trusts  for  her  separate  maintenance,  674. 
construction  of  particular  instruments,  074. 
the  rights  of  married  women  under  the  late  legislation  in  the  various 

States,  675-686. 
general  character  of  the  legislation,  675. 
does  not  affect  vested  rights,  076. 


634  INDEX. 

MARRIED  WOMEN,  —  continued. 

whether  the  riglit  to  reduce  their  choses  in  action  to  possession  is  a 

vested  right,  C76. 
settlements  to  the  separate  use  of  married  women  are  not  affected, 

677. 
generally  the  same  rules  apply  to  the  statutes  that  applied  to  settle- 
ments to  her  separate  use,  677. 
husband  and  wife  may  be  agents  for  each  other,  678. 
bow  they  may  use  each  other's  property  and  the  rights  and  presump- 
tions that  arise,  678. 
married  woman  may  give  her  property  held  under  the  statutes  to  her 

husband,  679. 
how  married  women  may  contract  under  the  statutes,  and  the  effect 

of  their  contracts  upon  their  separate  property,  680. 
how  a  husband's  curtesy  is  affected  by  the  statutes;  681. 
rights  of  married  women  to  make  wills  under  the  statutes,  682. 
may  be  appointed  trustees,  guardians,  administrators,  &c.,  683. 
how  she  may  sue  and  be  sued,  683. 
may  sue  her  husband,  683. 

may  sell  her  chattels,  take  notes,  and  hold  mortgages  upon  her  hus- 
band's property,  684. 
what  contracts  she  may  make,  and  how  far  she  will  be  bound  by  them 

in  relation  to  her  real  estate,  685. 
the  rights  given  to  married  women  are  confined  to  those  women  who 
have  property ;  no  contracts  can  be  made  'by  those  who  have  no 
property,  686. 
a  married  woman  is  sui  juris  in  respect  to  her  separate  estate,  285. 
MARSHALLING   OF  ASSETS,  238,  662-567,  599. 
MEDICAL  ATTENDANTS, 

dealing  with  their  patients  by,  204,  210. 
MEMORANDUM.     See  Writing. 
MENTAL  WEAKNESS,  190. 
MERGER, 

when  legal  and  equitable  title  vests  in  same  person,  13,  347,  348. 
the  estates  must  be  commensurate,  13,  347. 
illustrations  of  the  rule,  347. 

when  there  is  an  intention  that  the  estates  shall  not  merge,  348. 
illustrations,  348. 
MERITORIOUS   CONSIDERATION,  95,  106. 
MESNE  RENTS  AND   PROFITS, 

where  the  account  of,  is  complicated  upon  a  legal  title,  equity  may 

take  jurisdiction,  871. 
statute  of  limitations  applies  in  such  cases,  871. 
infant  may  have  a  bill  in  equity  for,  871. 
accounts  of  mines  may  be  taken  in  equity,  871. 


INDEX.  635 

MESNE   RENTS  AND   VROFYTS,  —  continued. 

accounts  may  be  taken  iu  equity  if  the  legal  action  is  lost  by  mistake, 

871. 
or  by  fraud  of  accountant,  871. 
ISIINERALS.     MINES.     MINING  LEASE,  530,  774. 
MINISTERIAL  POWERS,  508. 

See  Powers. 
MINISTERIAL   TRUST,  19. 
MISCONDUCT,  275,  817. 

MISREPRESENTATIONS.    See  Coxstkuctive  Trusts. 
what  are,  171-175,  177. 
■what  are  not,  171-175,  177. 
suggesiio  falsi,  177. 

what  will  be  relieved  against  in  equity,  171-175. 
must  be  of  facts,  not  opinions,  173. 
must  be  material,  174. 

of  matters  peculiarly  in  the  knowledge  of  the  party,  175. 
may  be  of  matters  of  opinion  where  it  is  known  that  the  other  party 
is  relying  on  them,  178,  179. 
MISREPRESENTATION   AS   TO   INVESTMENT  BY    TRUSTEES, 

419. 
MISTAKE, 

relief  in  case  of  conveyances  made  by,  184,  186. 
trustees  will  not  be  removed  for,  276. 
MISUNDERSTANDING, 

trustees  not  removed  for,  817. 
MIXED  TRUST  AND   POWER,  20. 
MIXING, 

trustee  must  not  mix  trust  funds  with  his  own,  447,  463. 
rights  of  cestui  que  trtist  when  there  is  a  mixing,  463,  837,  838. 
cestui  que  trust  has  a  lien  for  the  amount  of  trust  money  mixed  into 
the  purchase  of  an  estate,  128,  842. 
MONEY.     See  Cotrustees  ;    Custody  ;    Follow  ;    Investment  ;   Pos- 
session'. 
how  may  be  deposited  in  bank,  443,  444. 
earmarks  of,  128,  837-841. 

infant's  land  converted  into  money  is  real  estate.  Oil. 
cestuis  que  trust  may  elect  to  take  the  land,  or  money  laid  out  iu 
land  in  breach  of  trust,  128,  842. 
MONITORY   POWERS,  490. 

See  Powers. 
MORTGAGE, 

in  England  mortgage  goes  to  heirs,  243. 

mortgage  debt  goes  to  administrator,  243. 

in  United  States  both  go  to  administrator,  243. 


636  INDEX. 

MORTGAGE,  —  continued. 

mortgage  with  powers  of  sale,  495,  602  a-602  gg. 

of  railways  and  other  corporations  in  trust  for  bondholders,  749-7G3. 

See  Trustees  for  Bondholders. 
whether  investments  may  be  made  in,  458. 
MORTGAGE   WITH   POWERS   OF   SALE, 
several  forms  of,  602  b. 
deed  with  a  defeasance  in  it,  602  b. 
absolute  deed  with  defeasance  back,  602  b. 

deed  of  trust  as  security  equivalent  to  a  mortgage,  602  b,  602  d. 
deeds  containing  power  of  sale,  602  b. 

absolute  deeds  for   security  with   no  written   defeasance,    may  be 
shown  by  parol  to  be  a  mortgage,  226  note,  602  b. 

powers  of  sale  in  mortgage  in  the  civil  law,  602  c. 

equity  of  I'edemption  in  mortgages,  602  c. 

nature  of  mortgages,  602  d. 

test  as  to  whether  a  mortgage  or  not,  602  d. 

for  what  they  may  be  executed,  602  d,  602/. 

how  ihey  may  be  executed,  602  e. 

cannot  be  revoked,  602  e,  602  h. 

are  not  revoked  by  death  or  insanity.  602  h. 

power  of  attorney  to  sell  must  be  revoked,  602  h. 

powers  of  the  trustee  or  mortgagee  depend  upon  the  deed,  602  g. 

nature  of  the  powers  in,  602  g. 

form  of  the  powers  in,  602  g. 

on  what  the  power  may  depend,  602  g. 

legal  title  in  mortgagee  or  trustee,  602  i. 

nature  and  incidents  of  the  ti^le,  602  i. 

as  between  mortgagor  and  mortgagee,  602/. 

and  grantor  and  grantee  in  trust,  602 J. 

nature  of  power  of  sale,  602  k. 

is  a  power  appendant  to  the  estate,  602  k. 

effect  of  a  sale,  602  k. 

sale  in  breach  of  the  trust,  602  k. 

nature  of  the  trusts  under  power  of  sale  mortgages,  602  l. 

under  deeds  of  trust  for  security,  602  I. 

by  what  rules  governed,  602  m. 

governed  by  same  rules  as  other  trusts,  602  m. 

who  takes  the  powers,  602  m, 

to  whom  the  powers  go  upon  death,  resignation,  or  refusal,  602  m. 

court  may  appoint  trustees,  602  m. 

these  powers  go  with  the  estate,  602  n. 

by  whom  may  be  executed,  602  n, 

these  powers  not  devisable,  602  n. 

may  be  executed  by  vendee,  602  n. 


INDEX.  637 

MORTGAGE   WITH   POWERS   OF   SALE,  —  continued. 
by  administrator  or  executor,  G02  n. 
by  foreign  administrator,  G<)2  n. 

powers  must  be  executed  in  the  utmost  good  faith,  602  o. 
trustees  must  act  imparliiUy,  G02  o, 

power  must  be  strictly  followed  in  every  particular,  6U2  p. 
instances  of  the  particular  manner,  G02jj. 
•whether  the  sale  public  or  private,  C02  q. 
form  of  notice  of  sale,  G02  q. 
,   how  must  be  given,  602  q. 
when  the  manner  pointed  out  is  impossible,  602  q. 
what  particulars  must  be  stated  in  the  notice,  602  q. 
when  the  notices  must  be  given,  602  q. 
notice  of  time  and  place  of  sile  must  be  certain,  602  r. 
description  of  ihe  property  must  be  certain,  602  r. 
length  of  time  of  notice,  G02  /■. 
statements  in  notice  must  be  true,  002  5. 
must  be  of  a  sale  of  the  estate,  and  not  of  the  equity  of  redemption, 

602  s. 
statement  of  the  amount  due,  602  s. 
great  length  of  time  will  cure  defects,  602  t. 
sale  void  if  notices  defective,  602  t. 
adjournments  may  be  made,  602  M. 
notice  of  adjournments,  602  u. 
duty  to  adjourn,  when,  602  ii. 

trustees  for  sale  or  mortgagees  cannot  buy  the  estate,  199,  254,  602  v. 
directly  or  indirectly,  nor  by  their  agents  or  attorney,  602  o. 
nor  can  tliey  buy  for  others,  602  v. 

if  they  buy,  the  equity  of  redemption  is  not  barred,  602  v.  602  w. 
cestui  que  trust  may  buy,  602  v. 
when  the  sales  are  void,  600  v,  602  lo. 
when  the  objection  must  be  raised,  602  w. 
bow  courts  scrutinize  these  sales,  602  z. 
what  will  avoid  these  sales,  602  z. 
debts  nmst  be  liquidated  before  sale,  602  z,  602  ee. 
title  should  be  certain,  602  z,  602  ee. 
sales  in  parcels  or  as  a  whole,  602  z,  774. 
sale  for  inadequate  price,  187,  602  z. 
effect  of  a  sale  upon  the  title,  602  ua,  602  bb. 
when  the  mortgagor  may  still  redeem,  602  aa,  602  ee. 
power  gone  when  once  executed,  Gt)2  aa. 
if  not  well  executed,  may  be  executed,  511  a. 
bill  in  equity  cannot  be  maintained  to  set  aside  sale  when  the  ecpiity 

of  redemption  is  not  barred,  602  cc. 
but  the  bill  should  be  to  redeem,  602  cc. 


638  INDEX. 

MORTGAGE   WITH  POWERS   OF   SALE,  — conUnued. 

rights  of  a  purchaser  under  the  power,  602  bb. 

takes  under  the  original  deed,  602  g. 

rights  under  powers  of  sale  in  junior  mortgages,  602  bb. 

irregularities  in  sale  may  be  waived,  602  dd. 

when  they  are  waived,  G02  dd. 

trusts  that  arise  upon  sale  of  the  property,  602 jf/". 

how  proceeds  disposed  of,  602^. 

powers  of  sale,  cumulative  powers  of  foreclosure,  Q02  gg. 

courts  may  enjoin  sales,  when,  602  ee. 

when  powers  of  sale  are  extinguished,  602  d. 

powers  of  sale  may  be  waived,  when,  602  g. 

mortgagor  cannot  disseize  the  mortgagee  of  the  estate  or  defeat  the 
power,  602  h. 

a  sale  in  breach  of  the  trust,  602  k. 

See  Sale,  Trustees  for;    Powers  of  Sale. 
MORTGAGEE, 

cannot  purchase  the  equity  of  redemption  under  a  power  of  sale,  199, 
252,  602  b. 

in  possession,  a  constructive  trustee,  243. 

interest  of  a  mortgagee  in  fee  in  the  land,  338,  602^,  602  k. 

what  passes  by  a  devise  of,  338. 
MORTMAIN,  696,  740. 
MOTHER, 

not  compelled  to  support  her  children,  613. 

entitled  to  maintenance  for  her  children,  613. 
MOTION, 

trustees  may  be  removed  or  appointed  in  suits  already  pending  upon, 
282. 

order  to  pay  money  into  court  may  be  made  without,  824. 


N. 

NAKED   POWERS,  473,  491,  492. 

See  Powers. 
NATURALIZATION, 

may  have  a  retrospective  effect,  65,  131. 
NATURE   OF  A  TRUST,  298. 
N£  EXEAT, 

courts  can  enforce  trusts  by  writ  of,  72. 
NEGLIGENCE.     See  Cotrustees  ;  Custody  ;  Possession. 

trustees  must  not  be  guilty  of,  though  trust  is  in  suit,  474. 

negligence  of  trustees  in  investing.     See  Investment. 

instances  of  negligence,  418,  419,  845. 


INDEX.  639 

NEPHEW, 

purchase  in  the  name  of,  not  presumed  to  be  an  advancement,  144. 
NEW   TRUST. 

cestui  que  trust  may  assign  his  interest  upon  a,  102,  925. 

trustees  cannot  create  a  new  trust  extending  beyond  the  limits  of  a 

perpetuity,  383. 
Tvhere  trustees  convey  to  a,  925. 
NEW   TRUSTEES.       See  Appointment  of  Trustees;  Discharge  of 
Trustees  ;  Removal  of  Trustees. 
proceedings  for  the  appointment  of,  282. 
considerations  in  appointing,  39,  275-281,  283-285. 
courts    consider   the  fitness   or   unfitness  of   a  person,  not  whether 

another  is  more  fit,  283,  293. 
■when  the  appointment  is  complete,  284. 
number  of  new  tru.stees,  286. 
form  of  a  power  to  appoint  new  trustees,  288. 

if  no  power  in  the  instrument,  courts  alone   can   appoint  in  the  ab- 
sence of  consent  of  all,  289. 
or  if  the  parties  are  not  all  sui  juris,  289. 
courts  will  not  authorize  new  trustees  to  appoint  their  successors  if 

no  power  is  conferred  in  the  instrument,  287,  289. 
except  in  charities,  289. 

when  a  power  to  appoint  new  trustees  may  be  exercised,  289,  290. 
proceedings  to  appoint  new  trustees  when  suit  is  pending,  293. 
who  may  appoint  new  trustees,  294-29G. 
what  powers  they  may  exercise.     See  Powers. 
duty  of  new  trustees,  297. 
NEW   YORK, 

all  trusts  are  powers  in  trust,  336. 
NEXT   OF   KIN, 

distribution  to,  under  powers,  257. 
NOTES,  BANK.     See  Bank;    Ear-Mark;   Follow;   Identification; 

Money. 
NOTICE, 

not  necessary  to  perfect  voluntary  settlement,  105. 

it  may  be  an  inn)ortant  fact,  105. 

notice  to  purchasers  of  equitable  interests,  217-223,  225,  828-834. 

to  whom  notice  may  be  given,  222,  239,  830. 

when  it  must  be  given  or  had,  221,  222,  829. 

recording  of  deeds  under  the  regii^try  laws,  223. 

notice  to  agents,  when,  222. 

to  husband  or  wife,  when,  222. 
to  adminiistrator,  when,  222. 
constructive  notice,  what  is,  223. 
lis  pendens  is  constructive  notice,  223. 


640  INDEX. 

NOTICE,  —  coniimied. 

where  possession  is  constructive  notice,  223,  239. 

effect  of  notice  of  doubtful  equities,  833,  834. 

what  notice  trustees  should  give  of  the  assignment  of  chases  in  action 
to  them,  438,  845. 

purchaser  without  notice  from  purchaser  with,  and  vice  versa,  830. 

volunteer  need  not  have  notice,  217,  828. 

of  what  the  word  trustee  on  the  face  of  securities  is  notice,  225,  809- 
814. 
NOTICE   OF  SALE,  602  ^-602  u,  780,  782. 

See  Mortgage  with  Power  of  Sale  ;  Sale,  Trustees  for. 
NUMBER  OF   TRUSTEES, 

what  number  of  trustees  should  be  appointed,  275,  286. 
NUMEROUS, 

where  parties  are  numerous,  a  few  may  be  made  parties  plaintiff  or 
defendants  in  behalf  of  the  whole,  885. 
NUNCUPATIVE  WILLS, 

trusts  may  be  created  by,  when,  87. 


o. 

OFFICE, 

general  properties  and  duties  pertaining  to  the  office  of  trustee,  401- 
437. 
OPERATION  OF  LAW.    See  Constructive  Trusts  ;  Implied  Trusts  ; 

Resulting  Trusts. 
OPINION, 

courts  cannot  relieve  from  misrepresentations  of  matters  of  opinion, 

173. 
of  counsel  not  a  protection  to  trustee,  927. 
ORDERING  AND   DIRECTING,  112-114. 

See  Implied  Trust. 
OUTSTANDING  TERMS,  356. 
OVERPAYMENT   BY   TRUSTEES,  931,  932. 


P. 

PARAMOUNT  TITLE, 

taking  the  trust  property  from  a  trustee  by  title  paramount  puts  an 
end  to  his  responsibility,  931. 
PARCELS, 

trustees  for  sale  may  sell  by  parcels,  774. 
PARENT, 

contracts  of,  with  child,  201,  208. 


INDEX.  641 

PARENT.  —  coniimied. 

purchase  by,  in  the  name  of  child,  an  advancement,  143-140. 
trustees  may  refuse  to  convey  to  a  parent  for  a  child  and  have  their 

costs,  898. 
PAROL.     See  Statute  of  Frauds. 

■whether  trusts  in  lands  can  be  created  by,  75,  77,  79. 

where  lands  can  be  conveyed  without  writing,  trusts  can  be  raised  by 

parol,  74,  77. 
practice  in  the  several  States  as  to  trusts  by,  75,  77. 
trusts  created  by  writing  cannot  be  varied  by,  76. 
nor  revoked  bv,  77. 
PAROL  EVIDENx'e, 

whether  a  use  can  be  created  by,  74,  75. 

whether  a  trust  can  be  created  by,  75. 

a  trust  declared  in  writing  cannot  be  varied  or  annulled  by,  76. 

nor  can  a  trust  be  engrafted  upon  a  deed  by,  76. 

but  an  absolute  deed  may  be  shown  to  be  a  mortgage  by,  226  and  n. 

nor  where  there  is  a  valuable  consideration,  76. 

a  trust  can  be  proved  by  parol  when  the  parties  to  the  deed  are  not 

privies,  76. 
a  trust  created  by  parol  cannot  be  revoked,  77. 

at  what  time  the  declarations  of  a  grantor  must  be  made  to  be  com- 
petent evidence,  77. 
when  the  declarations  of  a  trustee  may  be  competent,  77. 
effect  of  the  statute  of  fraud,  78,  79. 
effect  of  an  answer  in  chancery,  84,  85. 
implied,  resulting,  and  constructive  trusts  may  be  proved  bv  parol, 

85.  "  -" 

personal  property  not  within  the  statute,  86. 
a  trust  cannot  be  grafted  upon  a  will  by,  94. 
but  parol  evidence  may  be  used  to  rebut  the  presumption  of  a  trust 

arising  upon  a  will,  94. 
a  resulting  trust  may  be  proved  b}'  parol,  137. 
against  the  answer  of  ilcfendant  on  oath,  1.'37. 
and  after  the  death  of  the  party  or  parties,  I.'jS. 
such  trusts  excepted  from  the  statute  of  frauds,  137. 
identity  of  funds  may  be  estaljlished  by  parol,  138,  835,  841. 
trust  funds  may  be  followed  into  lands  by  parol,  138,  835.  841. 
purchase  in  name  of  wife  or  child  presumed  to  be  an  advancement, 

143,  147. 
such  presumption  may  be  rebutted  by  parol,  143-140. 
character  of  the  evidence  that  may  be  given,  143-149. 
parol  declarations,  what  and  when  made,  to  be  competent,  147. 
parol  evidence  admissible  in  all  cases  of  fraud,  216,  226. 
constructive  trusts  may  always  be  proved  by,  226. 

VOL.  II.  41 


642  INDEX. 

PAROL   EVIDENCE.  —  continued. 

in  cases  ol"  accident  or  mistake,  226. 

parol  evi(3ence  in  cases  of  accident  and  mistake  cannot  be  received 

against  the  answer  of  defendant  when  no  fraud  is  charged,  226. 
not  favored,  226. 
in  Pennsylvania,  226. 
must  be  clear  and  explicit,  77,  86. 
PAROL   TRUST, 

cannot  be  altered  by  writing,  76,  77,  86. 
PARTIES   TO   ACTIONS, 

where  both  the  trustees  and  cestuis  que  trust  ought  to  be  parties  to 

actions  against  strangers,  873,  874. 
where  the  trustees  may  maintain  suits  in  their  own  names  without 

joining  cestuis  que  trust,  328,  520,  874. 
where  husband  and  wife  and  all  their  issue  must  be  joined,  874,  880, 

889. 
when  an  agent  may  sue  alone,  874. 
who  must  be  parties  to  suits  between  cestuis  que  trust  and  the  trustees, 

875-877. 
when  third  persons  must  be  joined,  877. 
where  one  trustee  may  be  sued  alone,  879. 

where  intermediate  trustees  or  assignees  need  not  be  joined,  878. 
all  the  cestuis  que  trust  must  be  parties,  881. 
where  cestui  que  trust  has  assigned  his  share,  882. 
where  cestui  que  trust  is  entitled  to  a  distinct  and  aliquot  share, 

882. 
suits  among  cotrustees  for  breach  of  trust  may  be  maintained  with- 
out joining  cestuis  que  trust,  884. 
but  if  cestuis   que  trust  or  some  of  them  procured  the  breach,  they 

must  be  joined,  884. 
where  parties  are  numerous,  a  few  may  sue  in  behalf  of  the  whole 

number,  885. 
practice  in  that  respect,  885. 
when  husband  and  wife  must  join,  889. 
where  husband  must  be  made  defendant,  889. 
trustees  should  join  in  their  answer,  888. 
when  they  may  separate  in  their  answer,  888. 
trustees  and  cestiiis  que  trust  should  join  in  answers,  887. 
in  what  order  parties  should  be  joined  as  plaintiffs  or  defendants, 

887,  889. 
representatives  of  deceased  trustees  need  not  be  made  parties,  877. 
PARTIES  TO  TRUSTS, 
who  may  be,  28-66. 
PARTITION, 

power  to  sell  does  not  authorize  partition,  769. 


INDEX.  643 

PARTNER, 

cannot  renew  a  lease  in  his  own  name,  196. 

creditors  of  a  partner  cannot  receive  partnership  property  in  pay- 
ment, 814. 

when  a  purchase  by,  with  partnership  funds  creates  a  resulting  trust, 
127. 

partnership  assignment  for  creditors,  599. 
PASSIVE   TRUST,  475. 
PASSIVE  TROSTEE, 

no  such  thing,  266. 
PATENT  RIGHT, 

may  be  conveyed  in  trust,  68. 
PAYMENTS, 

what  payment  must  be  made  to  create  a  resulting  trust,  134. 

trusts  for  payment  of  debts  under  a  will,  557-567. 

trusts  for  payment  of  debts  under  an  assignment  for  creditors,  585- 
602. 

order  of  payment  under  an  assignment,  602. 

to  infjint,  liow  made,  624,  930. 

to  married  woman,  930. 

to  partnership,  930. 

to  trustees,  930. 
PAYMENT   INTO   COURT, 

trustees  always  justified  in  bringing  money  into  court,  630. 

when  may  be  ordered,  824. 

when  ordered  to  be  made  forthwith,  825. 

and  when  in  a  reasonable  time,  825. 

what  title  the  plaintiff  must  show  for,  825. 

what  misconduct  must  be  shown,  472,  825, 

what  allegation  must  be  made  in  a  bill  to  entitle  the  plaintiff  to  an 
order  for,  827. 

upon  what  admissions  in  the  answer  it  may  be  ordereil,  827. 

whether  it  must  be  made  with  interest,  827. 

stops  interest,  468. 
PAY   THE   RENTS, 

whether  statute  of  uses  executes  trust  to,  305,  808. 
PENSION,  69. 
PERFECT  RIGHTS,  173. 
PERFECT  TRUST,  95,  98. 

wliether  a  trust  is  perfected-  or  not,  a  question  of  fact,  99. 
PERISHABLE  PROPERTY, 

whetiier  it  must  be  converted  or  not,  450,  451,  547,  548.. 

whether  a  resulting  trust  in,  130. 

where  there  is  a  specific  gift  of  it,  547. 


644  INDEX. 

PERJURY, 

conviction  of  an  agent  of  perjuring  in  denying  his  agency  does  not 
authorize  the  court  to  establish  a  resulting  trust  upon  parol  evi- 
dence, 135. 
PERMIT   AND   SUFFER, 

where  the  words  will  create  an  estate  which  the  statute  of  uses  exe- 
cutes or  not,  306,  307. 
PERPETUITY, 

description  and  definition  of,  377. 

limitations  by  Avay  of  executory  devise,  378. 

of  shifting  and  springing  uses,  378. 

when  they  must  vest  or  be  void,  378. 

equitable  estates  subject  to  the  same  rule,  378. 

future  interests  are  protected,  378. 

but  they  are  not  allowed  to  transcend  certain  limits,  378. 

the  origin  and  development  of  the  rule  against  perpetuities,  379. 

extent,  limitation,  and  application  of  the  rule,  380. 

the  question  upon  the  rule  is  not  whether  the  estate  actually  vests 
within  the  time,  but  whether  it  may  not,  381. 

an  equitable  estate  that  may  not  vest  within  the  time  is  void,  383. 

instances  of  the  application  of  the  rule  to  trusts,  383,  384. 

trusts  for  public  or  charitable  uses  not  within  the  rule,  384. 

a  trust  to  raise  a  sura  of  money  limited  contrary  to  the  rule,  385. 

contingent  remainders  in  equitable  estates  do  not  follow  the  rule, 
384. 

alienation  of  equitable  estates  cannot  be  restrained,  386. 

restraints  upon  alienation  illegal,  386,  555. 

exception  to  the  rule,  case  of  settlements  upon  married  women, 
387. 

but  property  may  be  limited  to  a  person  until  bankruptcy  or  aliena- 
tion, and  then  over,  388,  555. 

it  may  be  limited  for  a  particular  purpose,  386  a,  386  h. 

what  will  be  an  alienation,  388. 

a  limitation  of  personal  property  upon  the  same  trusts  as  real  estate 
in  strict  settlement  to  such  tenant  in  tail  as  first  attains  twenty-one, 
is  void,  389. 

how  such  limitation  may  be  good,  389. 

an  executory  trust  intended  to  create  a  perpetuity  is  void,  390. 

but  if  such  is  not  the  intention,  but  the  illegality  is  incidental,  the 
trust  win  be  carried  into  effect  cy  pres,  376,  390. 

alteration  of  the  rule  against  perpetuities  in  the  several  States,  391, 
392. 

trustees  cannot  extend  private  trusts  by  new  limitations  beyond  the 
time  allowed  for  a  perpetuity,  384. 


INDEX.  645 

PERPETUITY,  —  continued. 

and  the  settlor  cannot  give  them  power  to  limit  the  estate  to  new 

uses,  beyond  the  time  of  a  perpetuity,  384. 
■whether  a  perpetuity  can  be  created  under  a  power  of  sale,  385, 
506. 
PERSONAL  POWERS,  512-519. 

See  Powers. 
PERSONAL   SECURITIES, 

trustee  cannot  invest  in,  453. 
PERSONALTY, 

trust  in,  may  be  shoAvn  by  parol,  86. 
whether  a  trust  results  in,  130. 
PETITION, 

trustees  may  be  removed  and  appointed  upon,  280,  282. 
when  the  court  will  order  maintenance  upon,  G17. 
when  a  settlement  upon  wile  may  be  made  upon,  629. 
PIN-IMONEY, 

no  trust  results  to  wife  from  purchase  in  the  nanie  of  husband  with 

savings  from  wife's  pin-money  or  allowance,  127. 
savings  out  of,  belong  to  husband,  66-4. 
PLEADING, 

in  charity  suits,  746. 

bill  must  contain  a  clear  allegation  of  a  resulting  trust,  137,  226. 
and  all  the  facts  from  which  a  resulting  trust  arises,  137,  226. 
■what  a  purchaser  must  answer  to  repel  a  resulting  trust,  216,  219. 
what  allegations  should  be  made  in  diHerent  suits  against  trustees, 

890. 
if  a  bill  proceeds  upon  the  ground  of  default  in  the  trustees,  specific 
acts  must  be  alleged,  275,  800. 
POLICY  OF  INSURANCE.     See  Lnsurance. 
POLICY  OF  LAW, 

resulting  trust  cannot  be  set  up  against,  131. 

where  relief  is  refused  from  lapse  of  time  as  contrary  to  the  policy  of 
the  law,  869-871. 
POOR  OF  A  PARISH.     See  Cuauitaule  Uses. 
POOR  RELATIONS,  255,  256,  699. 

See  Relations. 
PORTIONS,  TRUSTS  TO  RAISE,  576-683. 

character  of  portions  and  of  trusts  to  raise  or  secure  them,  577. 
whether  jjortions  can  be  raised  upon  tlie  happening  of  a  particular 
event  by  a  sale  or  mortgage  during  the  lifetime  of  the  parents  or 
tenants  for  life,  578-5S0. 
is  generally  a  question  of  intention,  578. 

what  expressions  will  govern  the  construction  in  such  cases,  579. 
how  settlements  are  drawn,  580. 


646  INDEX. 

PORTION'S,  TRUSTS  TO   RAISE,  — continued. 

when  trustees  to  raise  portions  will  have  a  power  of  sale,  or  of  mort- 
gaging, although  not  given  in  terms,  581. 
where  a  sale  may  be  made,  although  there  is  a  direction  to  raise  the 

portion  out  of  the  rents  and  profits,  581. 
how  trustees  may  raise  portions  in  various  cases,  581. 
whether  portions  must  be  raised  in  gross  when  the  first  one  is  paya- 
ble, or  whether  they  are  to  be  raised  severally  as  each  becomes 
payable,  582,  772. 
when  the  trustees  neglect  to  raise  portions  as  directed,  583. 
when  interest  is  payable  upon  portions,  58-1. 
POSSESSION, 

when  possession  is  notice  of  an  equitable  interest,  223,  239. 

who  entitled  to  the  possession  of  a  trust  estate,  329. 

when  the  court  will  imply  that  trustees  are  to  have  the  possession,  and 

when  the  cestui  que  trust,  329. 
of  personal  estate,  330,  331. 

duty  of  trustees  as  to  taking  possession  of  the  trust  property,  438-440. 
when  they  must  give  notice  of  an  assignment  of  clioses  in  action,  438. 
trustees  cannot  claim  an  adverse,  433,  863,  864. 
POSSIBILITY, 

may  be  conveyed  in  trust,  68. 
POVERTY, 

will  not  excuse  laches  or  delay,  230. 
weakens  the  presumption  of  a  release,  867. 
power  in  trust,  334. 
POWER  IN  TRUST,  334. 
POWERS,  248,  258. 

general  description  of,  and  division  into  dist^retionary  and  imperative 

powers,  248. 
mere  powers  are  discretionary,  248. 
imperative  powers  are  trusts,  248,  473,  503. 
if  the  trustee  neglects  to  execute  imperative  powers,  the  court  will 

execute  them,  248,  249,  473,  503. 
imperative  powers  created  for  the  benefit  of  others  do  not  fail  by  the 

neglect  of  the  trustees,  248,  249,  503. 
illustrations  of  this  rule,  250,  251. 
where  a  direct  gift  is  made  to  one  subject  to  some  discretion  in 

another,  it  is  a  trust,  250,  251. 
cases  where  powers  are  not  trusts,  252,  253. 
powers  which  are  trusts  must  be  executed  as  they  are  given,  or  they 

will  remain  to  be  executed  by  the  court,  251,  254. 
how  the  court  will  execute  such  power  or  trust,  255. 
where  the  power  is  to  divide  among  poor  relations  or  the  most  neces- 
sitous of  the  family,  255. 


INDEX.  647 

POWERS,  —  continued. 

how  a  power  of  selection  is  to  be  exercised,  256. 

Low  a  power  of  distribution  must  be  exercised,  256. 

whetlier  distribution  will  be  made  jyer  stirpes  or  per  capita,  257. 

whether  amonfr  those  livins;  at  testator's  death,  or  those  living  at  the 
time  the  distribution  is  to  be  made,  258. 

general  divisions  of  discretionary  powers  into  general  and  special 
powers,  473. 

general  powers  belong  to  the  office  of  trustee,  473. 

how  powers  are  executed  if  the  administration  of  the  trust  is  before 
the  court  by  suit,  474. 

power  of  the  trustee  when  he  is  to  permit  the  cestui  que  trust  to  occupy 
the  estate,  475. 

a  trustee's  powers  are  measured  by  his  duties,  475. 

the  duty  and  power  must  be  strictly  performed,  475. 

where  a  trustee  may  exercise  a  discretionary  power,  though  none  is 
given  to  him,  476. 

considerations  which  govern  such  cases,  476. 

where  trustees  may  repair,  477,  526,  540,  552. 

the  extent  to  which  they  can  make  repairs,  477. 

power  of  repairing  when  there  is  an  equitable  tenant  for  life,  477. 

power  of  opposing  legislation  detrimental  to  the  property  under  their 
protection,  478. 

cannot  expend  the  fund  in  procuring  legislation,  478. 

power  of  executors  may  close  up  tlie  establishment  of  the  testator,  479. 

power  to  collect  or  appropriate  a  legacy  without  suit,  480. 

power  to  expend  money  for  the  protection  of  the  cestui  que  trust,  480. 

power  to  waive  the  general  statute  of  limitations,  481. 

no  power  to  extend  the  special  statute  of  limitations  for  the  protec- 
tion of  executors,  481. 

power  to  compromise  or  compound  debts  and  claims,  482. 

care  in  the  exercise  of  such  power,  482. 

when  they  have  power  to  release  an  equity  of  redemption,  483. 

no  power  to  release  a  security  for  the  convenience  of  a  third  person 
with  no  advantage  to  tlie  estate,  483. 

have  a  general  power  of  leasing  lands,  484,  608. 

what  kind  of  leases  they  can  make,  484,  608. 

when  the  cestui  que  trust  is  entitled  to  tlie  possession,  thev  cannot 
lease,  484. 

trustees  may  reimburse  themselves  for  money  advanced  for  the  bene- 
fit of  the  estate  or  the  cestui  que  trust,  485. 

powers  of  the  trustees  of  a  trading  company,  486. 

power  of  insuring,  487. 

division  of  special  powers  into  legal  powers  and  equitable  powers,  488. 

how  equitable  powers  operate,  488. 


6-18  INDEX. 

POWERS,  —  continued. 

legal  powers  are  recognized  at  law,  488. 

equitable  powers  may  be  appendant   to   an   interest  or  collateral, 

489. 
a  power  is  collateral  when  the  person  to  whom  it  is  given  has  no 

interest,  489. 
married  women  may  exercise  such  a  power,  489. 
and  infants,  489. 

special  powers  divided  into  strict  and  directory,  490. 
how  strict  powers  must  be  executed,  490. 
directory  powers  are   monitory,   and  may  be  executed  with   some 

latitude,  490. 
illustrations  of  strict  and  monitory  powers,  490. 
by  whom  powers  may  be  exercised,  491,  505. 
distinction  between  the  gift  of  an  estate  to  trustees  and  their  heirs, 

and  the  gift  of  a  naked  power,  491. 
estates  may  be  granted  by  the  donees,  or  devised  by  the  survivor  if 

it  is  a  joint  tenancy,  491. 
but  a  naked  power  cannot  be  assigned  by  both  or  devised  by  the  sur- 
vivor, 491. 
when  a  naked  power  of  sale  was  given  to  three  and  their  heirs  and 

one  died,  492. 
when  a  power  is  limited  to  "  executors  "  or  "  sons-in-law,"  what  sur- 
vivors may  execute  it,  493. 
a  power  annexed  to  the  office  may  be  exercised  by  survivor  or  sur- 
vivors, 273,  493. 
a  power  given  to  several  cannot  be  exercised  by  a  part  of  the  number 

if  the  others  are  qualified  to  act,  493. 
when  powers  are  to  be  exercised  with  the  consent  of  others  or  third 

persons,  493. 
a  power   given  to  trustees   and  "their    heirs"  without    the    word 

"  assigns  "  cannot  be  exercised  by  assignees ;  nor  by  devisees,  as  a 

devise  is  an  assignment,  494. 
but  if  "  assigns  "  is  inserted,  assignees  and  devisees  may  execute  the 

power,  494,  495. 
where  a  power  of  sale  cannot  be  exercised  by  assignees,  though  the 

word  assigns  is  used  In  the  limitation,  495. 
who  may  exercise  powers  of  sale  in  a  mortgage,  495,  499. 
where  the  powers  conferred  are  matters  of  special  confidence  in  the 

trustees  they  cannot  be  exercised  by  persons  not  embraced  in  the 

limitation  of  them,  273,  496. 
where  powers  are  given  to  four  trustees  or  the  survivors  cannot  be 

exercised  by  less  than  two,  497. 
but  if  the  power  is  to  be  exercised  by  the  survivor,  it  may  be  executed 

by  the  last  one,  497. 


INDEX.  649 

POWERS,  —  conlinued. 

a  power  of  sale  can  be  exercised  only  by  the  person  to  whom  it  is 
given,  499. 

if  given  to  two  without  words  of  survivorship,  it  cannot  be  exercised 
by  one  upon  the  death,  or  refusal  to  act  of  one,  499. 

but  a  power  of  sale  given  to  a  class  or  the  office  of  trustee  with  or 
without  the  mention  of  the  names,  will  continue,  so  long  as  there 
are  more  than  one,  499. 

in  the  United  States  such  power  may  be  exercised  by  a  single  sur- 
vivor, 499. 

trustees  are  joint-tenants,  and  if  the  title  is  in  them  the  survivor  takes 
it  and  has  power  to  convey,  499. 

statutes  of  the  various  States,  499. 

construction  of  the  statutes,  499. 

questions  upon  the  statutes,  499. 

powers  given  to  executors  cannot  generally  be  exercised  by  adminis- 
trators with  the  will  annexed,  unless  the  will  authorizes  it,  500. 

statutes  upon  the  subject,  500. 

husbands  cannot  execute  powers  given  to  their  wives,  500. 

when  a  power  of  sale  is  created,  but  not  limited  to  any  one,  the  per- 
son who  is  to  receive  and  administer  the  proceeds,  may  execute  the 
power,  501. 

who  may  execute  such  power  in  other  cases,  501. 

where  it  cannot  be  executed  at  all,  501. 

where  a  trustee  refuses  to  accept,  the  acting  trustees  may  exercise 
the  powers  of  the  office,  502. 

when  new  trustees  may  exercise  the  powers  of  the  old  trustees,  and 
when  not,  503. 

when  an  assignment  of  the  estate  does  not  transfer  the  power,  it  may 
destroy  the  right  of  the  original  trustee  to  exercise  it,  504. 

illustrations,  504. 

in  charities  one  may  have  the  estate,  and  another  exercise  a  power, 
504. 

powers  annexed  to  the  trust  survive  with  the  trust,  505. 

but  mere  jjcrsonal  powers  not  connected  with  the  trust,  do  not  sur- 
vive, 505. 

but  powers  given  to  trustees  by  name  will  go  to  the  survivor,  if  he 
takes  the  estate  coupled  with  the  duty  of  performing  the  trusts, 
605. 

at  what  time  powers  can  be  exercised,  498. 

must  be  during  the  continuance  of  the  trust,  49S. 

trustees  cannot  prolong  their  powers  by  negligence,  498. 

whether  powers  of  sale  are  void  lor  remoteness.  506. 

whether  they  may  tend  to  a  perpetuity,  oOG. 

powers  purely  discretionary,  507. 


650  INDEX. 

POWERS,  —  coniinved. 
what  are,  507. 

when  the  discretion  is  iniph'ed,  507. 

a  discretionary  power  to  renew  leases  is  construed  to  be  an  impera- 
tive power,  532. 
discretionary  powers  divided  into  four  classes,  508. 

(1)  where  trustees  have  power  to  make  or  withhold  a  gift  or  ap- 
pointment at  their  discretion,  50r. 

such  discretion  cannot  be  controlled  by  courts,  508. 
unless  it  is  used  corruptly,  508. 

the  discretion  will  be  construed  into  a  trust  to  be  executed  if  possi- 
ble, 508. 

(2)  where  an  interest  vests  in  the  cestui  que  trust,  and  the  trus- 
tees have  a  discretion  as  to  selection,  248,  473,  508. 

these  powers  are  trusts  which  the  court  will  exercise  or  execute  if  the 
trustees  neglect,  248,  249,  473,  503,  508. 

(3)  when  the  trustees  have  a  discretion  as  to  some  ministerial  act 
to  be  performed  for  the  benefit  of  the  estate,  508. 

these  powers  may  be  exercised  by  the  court  upon  inquiry  into  the 
facts,  508. 

courts  will  not  allow  them  to  be  exercised  by  the  trustee  in  an  arbi- 
trary manner,  608. 

(4)  when  the  discretion  is  a  matter  of  personal  judgment  upon  a 
personal  matter,  508. 

trustees  alone  can  exercise  such  discretion,  508. 

courts  cannot  control  such  discretion,  508. 

but  trustees  must  exercise  discretion  in  a  reasonable  manner,  508. 

powers  to  vary  securities  are  discretionary,  509. 

powers  to  vary  securities  confer  the  power  to  give  receipts  for  pur- 
chase-money, 509. 

how  such  powers  must  be  exercised,  509. 

where  the  power  is  imperative,  courts  can  compel  the  execution  of  it, 
509. 

whether  courts  can  control  the  exercise  of  a  discretionary  power,  508- 
611. 

courts  may  inquire  into  the  motives  of  the  exercise  of  such  powers, 
611. 

trustees  cannot  exercise  or  refuse  to  exercise  discretionary  powers 
from  fraudulent  or  improper  motives,  511. 

how  courts  may  give  relief  in  such  eases,  511. 

absolute,  uncontrollable  powers  not  favored,  511  a. 

will  control  them  where  possible,  511  a. 

courts  may  interfere  by  injunction,  511  a. 

powers  must  be  exercised  most  beneficially  for  cestui  que  trust,  511  a. 

must  be  exercised  for  the  end  and  purpose  designed,  511  a. 


INDEX.  651 

POWERS,  —  continued. 

cannot  be  exercised  for  the  benefit  of  the  donee  of  the  power,  511  a. 

nor  of  his  fomily  unless  authorized,  511  a. 

distinction  between  motive  of  the  donee  and  the  purpose   of  the 

donor,  511  a. 
how  trusts  and  powers  are  to  be  executed,  511  a. 
if  execution  of  power  fails,  may  be  executed  again,  511  a. 
a  second  execution  of  a  power  upon  the  same  ground  will  be  set  aside, 

511a. 
execution  of  powers  discussed  in  Tophara  v.  Duke  of  Portland  (31 

Beav.  525 ;  1  De  G.  J.  &  S.  517  ;  1  H.  L.  Cas.  32 ;  L.  R.  5  Ch.  40, 

49),  511a. 
Library  Co.  of  Philadelphia  v.  Williams  (73  Penn.  St.  249),  511  a. 
powers  must  be  executed  in  the  exact  manner  pointed  out,  511  6. 
if  no  formalities  pointed  out,  they  must  be  executed  in  the  usual  man- 
ner, 511  b. 
if  by  writing,  can  be  exercised  in  no  other  way,  511  b. 
must  be  by  deed  if  so  required,  oil  b. 
and  under  seal,  511  b. 

if  by  will,  cannot  be  executed  by  deed,  511  b. 
the  required  number  of  witnesses  must  attest  the  execution,  511  b. 
all  notices  required  must  be  given,  511  b. 
when  donee  of  power  must  refer  to  it,  in  the  instrument  of  execution, 

511c. 
when  he  need  not,  511  c. 
rules  which  govern  on  the  subject,  511  c. 
reasons  of  the  rules,  511  c. 
distinction  between  the  execution  of  a  power  and  a  conveyance  or 

devise  of  the  trust  estate,  511  c. 
how  powers  must  be  exercised  when  the  trust  is  in  the  hands  of  the 

court  by  a  suit,  293,  474,  508,  511,  764. 
personal  powers,  512-519. 

power  to  assent  to  the  marriage  of  the  cestui  que  trust,  512. 
when  such  power  is  valid,  and  when  void,  512-517. 
how  it  may  be  given,  512-517. 
construction  of  such  powers,  512-517. 
when  such  powers  are  exhausted,  514. 
how  such  powers  may  be  exercised,  517-519. 
who  may  exercise  such  powers,  518. 
what  control  courts  have  over  such  powers,  519. 
powers  to  appoint  new  trustees,  287-297. 
form  of  such  power,  288. 

when  or  upon  what  occasions  such  power  may  be  exercised,  290-293. 
where  suit  is  already  pending  in  court,  293. 
who  may  be  appointed,  297. 


652  INDEX. 

POWERS,  —  continued. 

by  whom  power  to  appoint  new  trustees  may  be  exercised,  294-296. 

courts  will  not  control  the  exercise  of  the  power  to  appoint,  297. 
PRACTICE.     See  Pleading. 

as  to  joining  parties,  873-889. 

as  to  absent  trustee,  878. 

as  to  absent  cestui  que  trust,  883. 

■where  a  few  may  sue  for  many,  885. 

who  should  join  in  answers.  886,  888,  889. 

in  what  order  parties  should  join  as  plaintiffs  or  defendants,  887. 

■what  allegations  should  be  made  against  trustees,  890. 
PRECATORY   WORDS.     See  Implied  Trusts. 

■what  are  and  what  are  not,  112,  113,  117,  119. 

construction  of,  112-116,  119. 
PREFERENCES,  586. 

in  assignments  for  creditors,  586. 
PREPAYMENT, 

trustees  may  accept,  438. 
PRESUMPTION, 

arising  from  lapse  of  time,  259,  866-869. 

parol  evidence  may  sustain  or  rebut  a,  150. 

of  the  acceptance  of  a  trust,  259-267. 

of  a  surrender,  319-356. 

of  the  regular  exercise  of  powers,  782. 
PRESUMPTIVE   TRUST.     See  Resulting  Trust. 
PREVENTION, 

where  one  fraudulently  prevents  a  deed  or  will  from  being  made,  181, 
182. 
PRINCIPAL.     See  Agent. 

contracts  with  agent,  206. 

notice  to  agent  may  be  notice  to  principal,  222,  229. 

■when  suits  may  be  in  the  name  of,  without  joining  cestuis  que  trust, 
874. 
PRIVATE   BOOKS, 

private  books  must  be  produced  if  the  trust  accounts  are  entered  in 
them,  821. 
PRIVATE  TRUST,  384. 
PRIVILEGED   COMMUNICATIONS, 

if  suits  are  pending  between  trustee  and  cestui  que  trust.,  the  cestui 
que  trust  has  no  right  to  see  the  oiiinion  of  the  trustee's  counsel, 
823. 
PRIVILEGES, 

of  trustees,  331. 
PRIVITY, 

who  are  in  privity,  15,  346. 


INDEX.  653 

PRIVITY,  —  cnntinned. 

all  who  take  the  estate  from  a  trustee,  except  purchasers  for  value 
without  notice,  and  disseisors,  take  subject  to  the  trust,  346. 
PROBATP; 

effect  of  proljate  of  wills,  96,  182. 

wills  have  no  elFect  before  probate,  96,  182. 

remedy  in  case  of  a  mistake  or  fraud  in  the  probate  of  wills,  182. 

regulation  of,   in  the  various  States,  182. 

as  to  probate  of  wills  lost  or  destroyed,  183. 

equity  no  jurisdiction  over,  182,  183. 
PRODUCTION, 

all  books  in  which  the  trust  accounts  are  kept  must  be  produced,  821. 

all  documents  and  opinions  of  counsel  must  be  produced,  822. 

trustee  not  compelled  to  produce  until  his  relation  is  established, 
823. 

and  when  there  is  litigation  between  trustee  and  cestui  que  trust,  pri- 
vate papers  of  the  trustee  cannot  be  inspected,  823. 
PROFIT.     See  Advantage. 

trustees  can  make  no  profit,  427,  428. 
PROFITS   OF  TRADE, 

with  trust  funds  all  belong  to  cestui  que  trust,  427. 

how  the  account  of,  is  made  up,  430. 

partners  must  account  for  profits  of  trade,  481. 

a  stranger  receiving  the  fund  not  accountable  for  profits,  431. 

all  standing  in  a  fiduciary  relation  are  accountable  for,  432,  838. 
PROMISSORY  NOTE, 

evidence  of  debt,  but  no  security,  453. 

trustees  cannot  invest  in,  453. 
PROOF, 

of  debts  against  a  bankrupt,  must  be  by  trustee,  332,  412, 

where  cestui  que  trust  may  be  required  to  concur,  332. 
PROPER   POWERS, 

what  will  be  inserted  in  executory  trusts  as  proper  powers,  375. 

whether  powers  of  sale  are  proper  powers,  717. 
PROPERTY, 

what  may  be  the  subject  of  a  trust,  67-70. 

hoAV  far  trusts  can  be  enforced  against  property  in  a  foreign  jurisdic- 
tion, 70-72. 
PROTECTION, 

of  the  trustee,  928. 

of  future  estates,  378. 
PROVING  WILL, 

whether  the  acceptance  of  a  trust,  262-264. 
PROXY, 

the  acting  of  trustee  by  pro.xy  is  not  a  delegation  of  the  trust,  409. 


654  INDEX. 

PUBLIC   POLICY.     See  Policy  op  the  Law. 

when  relief  will  be  refused  upon  the  ground  of,  869,  870. 
PUBLIC   TRUST.     See  Charitable  Uses. 
PURCHASE.     See  Resulting  Tkust. 

from  trustee  with  notice  of  the  trust  creates  a  constructive  trust,  217- 
226. 
PURCHASE-MONEY, 

vendor's  lien  for,  231-239. 
PURCHASER, 

who  is  a  honajide,  217-219,  239,  828. 

notice  to  a  purchaser,  what  is,  222,  223. 

when  notice  must  be  given,  221,  222,  828-830. 

protection  of  jiurchaser,  219,  828. 

what  consideration  is  sufficient  for  his  protection,  220. 

constructive  notice  to,  223. 

what  is  constructive  notice  to,  223. 

must  not  commit  a  breach  of  trust  to  protect  himself,  217,  218,  829. 

what  he  must  show  in  his  answer,  219. 

becomes  a  trustee  for  the  vendors,  for  the  purchase-money,  122,  231. 

a  purchaser  in  the  name  of  another  may  show  all  the  facts  and  cir- 
cumstances, and  his  intention  in  making  the  purchase,  to  rebut  a 
resulting  trust,  1-17. 

purchaser  in  the  name  of  another  to  defraud  creditors,  149. 

prima  facie  a  purchaser  of  trust  estates  must  see  to  the  application 
of  purchase-money,  790. 

how  the  rule  may  be  controlled,  791-801. 

an  innocent  purchaser  cannot  get  in  outstanding  titles  after  notice, 
221,  829. 

purchaser  of  cliose  in  action  is  subject  to  all  the  equities  and  rights 
between  the  parties,  831. 

purchaser  of  cliose  in  action  should  give  notice,  438. 

purchaser  bound  by  notice  of  doubtful  equities,  833,  834. 


Q. 

QUALIFICATION, 

of  trustees  or  executors  where  bonds  are  required,  262. 
QUASI  TRUSTEES, 

no  person  standing  in  a  fiduciary  relation  can  take  advantage  of  his 

position  to  make  an  advantage  out  of  the  trust  property,  129,  196, 

199,  209,  210,  430,  431. 
or  make  a  contract  with  his  quasi  cestuis  que  trust,  196,  199,  204, 

209,  210. 
who  are  such  quasi  trustees,  430,  431. 


INDEX.  655 


R. 


RAILWAY, 

mortgage  of,  in  trust,  749-763. 

See  Trusters  for  Bondholders. 
REALTY, 

what  is  necessary  in  a  will  in  order  to  exonerate  personalty  from 

debts  and  charge  them  upon  the  realty,  567. 
where  the  realty  and  personalty  is  blended  in  one  fund  for  the  pay- 
ment of  legacies,  570. 
REASONS, 

whether  trustees  may  be  required  to  give  reasons  for  executing  or 

not  executing  discretionary  powers,  511. 
the  effect  of  their  giviuii  reasons,  511. 
REBUTTER  OF   RESULTING   TRUSTS,  126,  139,  143. 

of  an  advancement,  145,  147,  148. 
RECEIPTS, 

trustees  must  all  sign  receipts,  412,  416,  806. 

trust  for  sale  a  joint  office,  and  all  the  trustees  must  sign  receipts  for 

the  purchase-money,  412,  806. 
power  to  sign  receipt  a  personal  confidence,  806. 
cannot  be  delegated,  and  does  not  pass  with  the  estate,  806. 
nor  to  cotrustees,  806. 
trustees  may  sign  receipts  and  authorize  agents  to  receive  the  money, 

806. 
new  trustees  for  sale  appointed  by  the  court   may  sign   receipts, 

807. 
reason  of  this  exception  to  the  general  rule,  807. 
power  of  trustees  to  sign  receipts  after  a  breach  of  trust,  808. 
where  the  property  comes  back  to  the  trustees  in  an  unchanged  form, 

807. 
receipts  of  trustees  after  a  breach  of  trust  would  not  protect  those 

who  had  received  the  property  knowing  it  to  be  a  breach,  808. 
receipts  are  usually  contained  in  deeds  in  the  United  States,  and  the 

deeds  are  signed  by  all  the  trustees,  808. 
in  case  the  consideration  is  not  named  in  the  deed  a  receipt  signed 

by  all  the  trustees  should  be  taken,  808. 
receipts  of  executors  and  adiniuistrators,  421,  423,  425,  809-814. 
if  trustees  sign,  they  are  responsible  at  law,  416. 
and  j)ii»ia  facie  in  equity,  416. 

burden  on  them  to  show  that  liiey  received  no  money,  416. 
trustees  having  signed  a  receipt  may  not  be  liable,  418. 
and  they  may  be  liable  although  they  received  no  money,  418. 
power  to  vary  security  implies  power  to  sign  receipts,  509. 


656  INDEX. 

RECEIVE, 

trustees  may  receive  money  before  it  is  due,  438. 
RECEIVER, 

■when  a  receiver  will  be  appointed,  818. 

for  what  causes,  818. 

will  not  be  appointed  on  slight  grounds,  819. 

may  be  by  consent,  818. 

court  will  require  security,  818. 

what  is  not  sufficient  reason  for  a  receiver,  819. 

receiver  is  paid  out  of  income  of  tenant  for  life,  820. 

is  appointed  for  benefit  of  all  parties,  820. 

will  not  be  discharged  upon  application  of  one  party,  820. 

will  be  discharged  as  soon  as  possible  with  safety,  820. 

trustee  cannot  be  appointed  receiver,  432. 

when  an  assignment  in  trust  for  creditors  is  set  aside  as  fraudulent, 
a  receiver  may  be  appointed,  594. 
RECITAL, 

trusts  may  be  created  by,  in  deeds  or  wills,  81,  82,  91. 

trustees  should  see  that  all  recitals  in  the  trust  instrument  are  cor- 
rect, 260. 
RECOMMEND,  112-114. 

See  Implied  Trusts  ;  Precatory  Words. 
RECONVEYANCE.     See  Surrender. 
RECOVERY,  913,  932. 
REDEMPTION.     See  Mortgage. 
REDUCTION   TO  POSSESSION, 

of  a  wife's  chosen  in  action,  626. 

what  is  such  reduction,  and  what  is  not,  639-643. 

wife's  right  to  a  settlement  barred  by,  643. 

and  her  survivorship  is  barred,  643. 
REFERENCE, 

how  a  reference  to  other  deeds  or  papers  in  a  deed  or  will  will  incor- 
porate them,  93. 

papers  referred  to  in  a  will  must  be  probated  or  they  have  no  effect, 
93. 
REFUSAL  OF   THE  TRUST.     See  Disclaimer. 

parties  may  decline  a  trust  after  a  promise  to  accept,  259. 

how  refusal  should  be  made,  259. 
REGISTRY, 

of  deeds,  effect  of  as  notice,  223. 

of  deeds  made  by  persons  other  than  the  owner  is  not  notice,  241. 
REIMBURSEMENT, 

right  of  trustees  to,  for  expenses,  910-915. 

right  of  trustees  to  reimburse  themselves,  485,  528. 

when  they  cannot  reimburse  themselves,  548. 


INDEX.  657 

RELATIONS, 

distribution  among,  under  a  power,  255,  256. 

trust  for  poor  relations,  construction  of,  699. 
RELEASE, 

trustees  cannot  release  actions  against  consent  of  beneficiary,  520. 

conveyance  by  deed  of  lease  and  release,  1G2. 

of  breach  of  trust,  85  L 

how  scrutinized  by  court,  85  L 

how  must  be  executed,  851. 

■whether  trustee  entitled  to,  upon  determination  of  trust  and  distribu- 
tion of  trust  fund,  922-925. 

whether  trustee  may  release  a  debt  due  the  trust  estate,  482. 

when  may  release  an  equity  of  redemption,  483. 
RELIEF, 

from  fraud,  may  depend  upon  the  form  in  which  it  is  sought,  176. 

when  deeds  or  wills  are  fraudulently  prevented  from  being  made  in 
favor  of  others,  181,  182. 
RELINQUISHMENT  OF  TRUST, 

new  relinquishment  of  trust  after  acceptance  is  of  no  effect,  268,  274, 
921. 
REMAINDER-MAN.     See  Tenant  for  Life. 

rights  of  the  remainder-man,  539-556. 

as  to  possession  by  tenant  for  life,  539-543. 

rights  to  extra  dividends,  stock  dividends,  &c.,  544,  545,  n. 

as  to  improvements  and  stock  upon  a  farm,  546 . 

rights  where  there  is  a  general  devise  of  perishable  property,  449- 
451,  547. 

when  there  is  specific  devise  of  perishable  property,  547, 

rights  where  a  large  interest  is  received  by  the  tenant  for  life  upon  a 
hazardous  investment  of  the  property,  547-549. 

as  to  repairs,  552. 

rights  as  to  insurance,  553, 

rights  and  duties  as  to  renewal  of  leases,  535-538. 
REMEDY, 

o(  cestui  que  trust  for  broach  of  the  trust,  816-853. 

of  cestui  que  trust  against  a  disseisor,  346. 
REMOTENESS,  385,  506. 
RExMOVAL  OF  TRUSTEES, 

the  causes  for  removal  enumerated,  275-279,  817,  818. 

for  what  causes  trustees  will  not  be  removed,  276,  277. 

considerations  which  govern  courts  in,  276-278. 

courts  of  equity  cannot  remove  executors,  281. 

courts  of  probate  alone  have  that  power  over  executors,  281. 

but  courts  of  equity  may  remove  executors  from  trusts  and  leave 
them  to  act  as  executors,  281. 
VOL.  II.  42 


658  INDEX. 

REMOVAL  OF  TRVSTET.S,  — continued. 

who  may  originate  proceeding  to  remove  trustees,  282. 

when  all  parties  consent,  283,  285. 

trustees   may  be  removed  from  a  part  of  the  trusts  created  by  the 
same  instrument,  280. 

but  not  against  their  will,  280. 

when  the  cestui  que  trust  may  remove  the  trustees,  292. 
RENEAVABLE   LEASEHOLDS, 

rights  and  duties  of  trustees  in  respect  to,  532-538. 

the  right  of  renewal  valuable,  538. 
RENT, 

when  trustees  responsible  for,  527. 

usual  rent,  what  is,  529. 
RENUNCIATION.     See  Disclaimer. 

of  the  trust  ought  to  be  unequivocal,  270. 

cannot  be  after  acceptance,  268,  273,  40L 
REPAIRS, 

who  may  make,  477,  526,  540,  552,  553. 

whether  a  trustee  may  invest  money  in  repairs,  477. 
REPAYMENT, 

when  ordered  to  be  made  to  trustee  or  executor,  931,  932. 
REPRESENTATIVES, 

when  can  execute  powers,  294. 
REQUESTING,  112-114. 

See  LviPLiED  Trust. 
REQUIRED, 

construction  when  particular  investments  required,  460-462. 
RESIDUARY, 

a  residuary  gift  of  personal  property  for  life,  requires  it  to  be  con- 
verted, 449,  450,  557. 
RESIGNATION   OF   TRUSTEES.     See  Disclaimer. 
RESTRAINT.     See  Anticipation  ;  Married  Womex  ;  Perpetuity. 

of  marriage  when  void,  515,  516. 

against  alienation,  386,  389,  555,  670,  671. 

against  anticipation,  387,  670,  671. 
RESULTING  TRUSTS,  124-165. 

description  of,  124. 

arise  or  result  by  operation  of  law,  124. 

conditions  under  which  they  arise,  125,  n. 

when  consideration  paid  by  one  and  title  taken  to  another,  124-126, 
143. 

law  presumes   a  trust  for  the  one  paying  the    consideration,   126, 
143. 

when  purchase  made  in  name   of  a  fiduciary  with  fiduciary  funds, 
127. 


INDEX.  659 

RESULTING   TRUSTS,  —  continued. 

to  whom  the  trust  resuhs  in  such  cases,  127,  138. 

to  whom  it  results  upon  failure  or  lapse  of  a  bequest,  160  a. 

when  the  funds  belong  to  cestui  que  trust,  128. 

as  to  the  identity  of  the  money  in  such  cases,  128. 

when  money  cannot  be  identified  there  is  no  trust,  128. 

•when  purchase  is  made  partly  with  trust  fund,  purchaser  must  prove 
the  amount  of  his  own  money,  128, 

cestuis  que  trust  may  claim  the  purchase-money  and  interest  or  the 
land,  128. 

when  one  not  a  trustee  applies  another's  money  to  a  purchase  no 
trust  arises,  128,  135. 

when  a  clerk  makes  a  purchase  with  money  embezzled  from  his  em- 
ployer, 128,  135. 

when  a  trustee  uses  his  position  to  purchase  the  trust  property,  129. 

when  an  agent  purchases  lands  with  his  own  money,  135. 

when  an  agent  purchases  with  money  of  his  principal,  127,  135. 

when  an  agent  purchases  lands  of  his  principal,  129,  135. 

trusts  result  in  personal  property  as  in  real  estate,  130. 

trusts  do  not  result  if  contrary  to  law,  131. 

if  persons  are  forbidden  to  take  or  hold,  131. 

trusts  result  to  several  as  well  as  one,  132. 

they  result  in  proportion  to  the  amount  paid  by  each,  132. 

presumption  of  an  equal  contribution,  132. 

must  claim  some  specific  interest,  132. 

the  trust  must  result  at  the  instant  of  the  passing  of  the  deed,  133, 
134,  140. 

must  result  from  the  transaction  and  not  from  agreements  before  or 
,  after,  133,  134. 

how  payments  must  be  made  to  create,  133,  134.     See  Parol  Evi- 

DKNC'E. 

parol  evidence  may  establish,  137. 

nature  and  character  of  the  evidence,  137,  138. 

parol  evidence  may  rebut,  139. 

resulting  trust  a  presumption  of  law  which  may  be  rebutted  by  parol, 

13l». 
no  resulting  trust  arises  if  the  purchaser  was  intended  to  have  the 

beneficial  as  well  as  tlie  legal  interest,  140. 
nor  if  the  trust  wao  declared  in  writing  at  the  time,  140. 
trusts  arising  after  the  purchase  cannot  be  proved  by  parol,  140. 
after  great  lapse  of  time  courts  will  not  enforce,  141.     See  Laches. 
abolished  in  New  York,  except  in  certain  cases,  142. 
construction  of  the  statute  in  New  York,  142. 
rights  of  creditors  in  a  resulting  trust,  142,  14'J. 
how  they  may  enforce  their  rights,  142,  149. 


660  INDEX. 

RESULTING  TRUSTS,  — continued. 

where  the  purchaser  takes  the  title  in  the  name  of  wife  or  child,  there 
is  no  resulting  trust,  1-L3. 

such  purchase  presumed  to  be  an  advancement,  143. 

it  is  a  circumstance  of  evidence  to  rebut  the  trust,  143. 

in  what  cases  it  is  presumed  to  be  an  advancement,  144. 

for  what  persons  it  will  be  presumed  an  advancement,  144. 

what  the  relations  must  be  between  the  parties,  144. 

the  presumption  of  an  advancement  may  be  rebutted,  14.5. 

what  circumstances  will  or  will  not  rebut  the  presumption  of  an  ad- 
Tancement,  145-147. 

whether  an  advancement  or  not  a  matter  of  intention,  147. 

if  a  purchaser  pays  the  consideration,  and  a  wife  or  child  obtains  the' 
conveyance  b}'  fraud,  the  presumption  of  an  advancement  is  rebut- 
ted, and  a  trust  results,  148. 

where  a  conveyance  is  taken  in  the  name  of  a  wife  or  child,  in  fraud 
of  creditors,  a  trust  results  to  the  creditors,  142,  149. 

where  the  legal  estate  is  conveyed,  but  not  the  beneficial  interest,  a 
trust  results,  150. 

rules  that  govern  construction  and  show  intention  in  such  cases,  150, 
151. 

no  resulting  trust  where  a  valuable  consideration  is  paid,  151. 

where  a  trust  is  declared  which  does  not  exhaust  the  whole  estate,  a 
trust  results,  152. 

distinction  between  a  charge  and  a  trust,  152. 

no  trust  results  where  there  is  an  intention  to  benefit  the  donee, 
153. 

where  a  trust  results  in  gifts  to  executors,  155. 

there  is  no  resulting  trusts  in  cases  of  charitable  gifts,  156. 

when  the  legal  title  is  given  upon  trusts  that  fail,  or  are  not  declared, 
or  are  illegal,  a  trust  results,  157,  160. 

but  if  it  appear  that  the  donee  was  to  take  beneficially,  in  such  case 
no  trust  results,  157,  160. 

construction  of  gifts  in  such  cases,  158. 

there  is  no  resulting  trust  where  the  donee  pays  a  valuable  considera- 
tion, 158. 

a  gift  to  a  corporation  that  is  dissolved  results,  161. 

where  the  gift  is  too  vague,  uncertain,  or  indefinite  to  be  executed,  a 
trust  results,  169,  160. 

construction  of  gifts  in  such  cases,  159,  160. 

upon  failure  or  lapse  of  a  bequest,  159,  160. 

to  whom  the  trust  results,  160  a. 

what  circumstances  will  create  or  rebut  the  presumption  of  a  result- 
ing trust,  150-160. 

whether  a  resulting  trust  will  arise  upon  a  voluntary  conveyance,  161. 


INDEX.  661 

RESULTING  TRUSTS,  —  continued. 

the  older  authorities  upon  the  question,  161. 

trusts  will  not  arise  upon  modern  conveyances  though  voluntary  and 
without  consideration,  162. 

rules  and  distinctions  upon  the  subject,  162-165. 

how  executed,  165  a. 
RETAINER.     See  Mauhikd  Women. 

when  the  right  of,  may  be  exercised,  669. 
RETIREMENT  OF  TRUSTEES.     See  Abandonment;  ArpoiNXMENx; 

Discharge;  Disclaimer;  New  Trustees. 
REVERSION.     See  Constructive  Trust. 

may  be  conveyed  in  trust,  68. 

sale  of  by  an  heir  or  reversioner,  188. 
REVERSIONER, 

sale  of  his  reversion  by,  188. 
REVOCABLE, 

when  voluntary  trusts  are,  lOi. 

when  trusts  under  assignments  are,  593,  594. 
REVOCATION, 

of  will,  how  must  be  made,  93. 
REVOKED, 

a  voluntary  settlement  is  revoked  by  a  subsequent  sale  for  valuable 
consideration,  104. 

but  not  by  a  second  voluntary  settlement,  104. 
ROBBERY, 

trustees  responsible  for  losses  by  robbery  by  their  own  servants  and 
agents,  441. 

but  not  for  robbery  by  strangers,  441. 


s. 

SALE,  TRUSTEE  FOR.      See  Powers;    Mortgages   with   Power 

OF  Sale. 
trustees  not  justified  in  selling  in  the  absence  of  express  or  implied 

authority,  764. 
courts  may  decree  a  sale  at  any  time,  764. 
if  trust  in  hands  of  court  trustees  cannot  sell,  though  the  instrument 

contains  an  express  power,  764,  770. 
■when  a  power  of  sale  is  appendant  or  collateral,  602  Ic,  765,  789. 
where  a  power  is  collateral   the   title    descends   to   thQ   heirs,  and 

they  are  entitled  to  the  rent  until  the  power  is  executed,  765, 

789. 
what  form  of  words  creates  a  power  of  sale,  602  g,  766. 
when  a  power  of  sale  will  be  implied,  766. 


662  INDEX. 

SALE,   TRUSTEE   FOR,  —  continued. 

whether  a  power  of  sale  can  be  introduced  in  settlements  under  exec- 
utory trusts,  767. 

whether  a  power  of  sale  will  authorize  a  mortgage,  7(38. 

whether  a  power  to  mortgage  will  authorize  a  sale,  768. 

when  a  power  of  sale  authorizes  a  lease,  769. 

or  an  exchange,  769, 

or  partition,  769. 

whether  a  power  of  mortgage  authorizes  a  mortgage  containing  a 
power  of  sale,  768. 

duty  of  trustee  for  sale,  602  o,  770. 

must  be  impai'tial  between  different  interests,  602  o,  770. 

diligence  in  procuring  the  best  sale,  770. 

as  to  the  time  when  they  may  sell,  770-772,  783,  789. 

when  the  time  named  for  a  sale  is  directory,  771. 
.     meaning  of  all  "  convenient  speed,"  771. 

power  of  sale  to  raise  portions   should  not  be  exercised  until  the 
money  is  wanted,  772. 

whether  a  power  of  sale  to  raise  portions  is  to  be  exercised  to  raise 
all  the  portions  at  once,  582,  772. 

when  trustees  for  sale  cannot  exercise  the  power  during  the  life  of  a 
tenant  for  life,  773. 

when  tenant  for  life  may  join  in  the  trusts  for  sale,  773. 

trustees  for  sale  of  an  aliquot  part  may  join  with  others,  773. 

must  make  a  good  title,  774. 

cannot  split  up  the  estate  into  timber,  mines,  and  land,  774,  776. 

but  may  sell  in  lots,  602  y,  774. 

may  employ  agents,  775,  779. 

agent's  authority  should  be  in  writing,  779. 

responsible  for  the  purchase-money,  although  it  comes  into  the  hands 
of  the  tenant  fur  life  or  cestui  que  trust,  775. 

how  must  sell  when  there  is  tenant  for  life  without  impeachment  of 
waste,  776. 

how  money  ought  to  be  invested  in  such  case,  776. 

sale  when  tenant  for  life,  cestui  que  trust,  or  third  persons  must  con- 
sent to  it,  777,  784. 

when  they  are  to  reinvest  the  proceeds,  777. 

when  the  consent  to  or  request  for  the  sale  is  to  be  in  writing, 
778. 

power  of  sale  cannot  be  delegated  even  to  a  cotrustee,  779. 

if  the  fee  is  in  trustees,  they  may  act  through  an  attorney  duly  ap- 
pointed, 779. 

whether  sale  to  be  at  auction  or  private,  602  q,  780,  781. 

what  notices  or  advertisements  must  be  given  or  made,  602  q-602  u, 
780,  782. 


INDEX.  663 

SALE,  TRUSTEE  YOB,,  — continued. 

powers  of  sale  must  be  strictly  followed  and  executed  precisely  as 

given,  602  p,  783-785. 
instances  and  illustri.tions  of  this  rule,  783-785. 
when  the  power  is  to  be  exercised  upon  some  contingency  or  condi- 
tion or  upon  failure  of  personal  estate,  785. 
when  the  conditions  are  precedent  or  subsequent,  785. 
what  conditions  of  sale  trustee  may  propose,  786. 
must  not  impose  unnecessary  conditions,  786. 
cannot  sell  on  credit,  786  a. 

when  they  may  enter  into  covenants  of  title  and  when  not,  786. 
who  may  make  a  good  title,  787. 
when  specific  performance  will  be  decreed,  787. 
when  not,  787. 

trustees  for,  cannot  purchase,  194-210,  602  w,  602  «>,  787. 
by  Avhom  the  power  of  sale  may  be  exercised,  41-4,  499,  500-502. 
when  a  power  of  sale  will  be  implied  501,  602  g. 
a  power  of  sale  is  implied  in  assignments  in  trusts  to  pay  debts, 

598. 
but  an  assignment  that  does  not  purport  to  convey   land  will    not 

import  a  power  of  sale  of  land,  598. 
sale  of  trust  property  by  trustee  will  pass  the  legal  title,  though  it  is 

a  breach  of  trust,  274,  334,  335,  602  k.     See  Sell. 
but  will  not  pass  any  authority  to  the  grantee,  274. 
nor  relieve  the  trustee  from  liability,  274. 
even  though  the  sale  is  to  a  cotrustee,  274. 
whether  a  court  of  equity  can  decree  a  sale  of  infant's  land  in  the 

absence  of  a  statute,  610. 
proceedings  to  sell  infant's  land,  610. 

See  Mortgage  with   Power   of  Sale. 
SALE   AND  EXCHANGE, 

whether  a  power  to  sell  authorizes  an  exchange,  769. 

whether  a  power  of  sale  and  exchange  will  be  inserted  in  settlements 

under  executory  trusts,  767-769. 
trustees  for  sale  or  exchange  may  pay  owelty  of  exchange,  769. 
SCANDALOUS, 

to  charge  trustees  with  corrupt  and  improper  motives  is  not,  275. 
to  charge  general  malice  is,  275. 
SCHOOLS, 

when  a  trust  for  charitable,  700. 
when  not,  732. 

gift  for  a  school  in  a  particular  district  rendered   impossible    con- 
strued cy  pres,  12b. 
SEAL, 

effect  of.  111. 


664  INDEX. 

SECRET  TRUSTS,  216. 

See  Constructive  Trusts. 
constructive  trusts  arise  from,  in  fraud  of  the  law,  216. 
defendant   must   answer   to  the  allegation  of,    notwithstanding   the 
statute  of  frauds,  216. 
SECURITY.     See  Iade.mxity  ;  Investment. 

how  far  the  taking  security  by  a  vendor  is  a  waiver  of  his  lien,  236, 

237. 
when  a  trustee  may  require,  928. 
SELECTION.     See  Charitable  Uses. 
SELL, 

at  common  law  trustees  may  sell  both  real  and  personal  property, 
217,  218,  274,    308,  310,  321,  326,   334,  335,  340-346,  410,  414, 
503,  505,  521,  765. 
the  right  to  sell  coextensive  with  their  ownership,  334. 
effect  of  a  sale,  334. 

in  New  York^a  trustee's  ownership  is  converted  into  a  power,  and  a 
trustee  cannot  sell  unless  there  is  an  express  power,  334. 
SEPARATE  USE,  646  et  seq. 

See  Married  Women. 
SEPARATION, 

trusts  upon  deeds  of  separation  between  husband   and  wife,   672, 
674. 
SEQUESTRATION, 

remedy  against  corporations,  42. 
SET-OFF, 

trustee  cannot  set  off  a  profit  made  upon  one  part  of  the  trust  against 

a  loss  by  breach  of  trust  upon  another,  847. 
in  suits  by  trustees  debts  owed  by  cestuis  que  trust  cannot  be  set  off, 

330. 
in  case  of  married  women,  669. 
SETTLEMENT.     See  Married  Women. 

purchase  in  the  name  of  wife  not  a  resulting  trust  but  a  settlement, 

143. 
right  of  a  wife  to  a  settlement  out  of  her  chases  in  action,  626-645. 
proceedings  for  such  settlement,  629. 
in  what  property  may  be  had,  633,  634. 
settlement  upon  wife  to  her  separate  use,  646  et  seq. 
voluntary  settlement,  96-111. 
SETTLOR.     See  Settlement  ;  Voluntary  Settlement. 
SEVERANCE, 

when  trusts  can  be  severed,  264,  281. 
when  not,  264,  281. 

trustees  ought  not  to  sever  in  legal  proceedings,  411. 
nor  in  their  answers,  888. 


INDEX.  665 

SEVERANCE,  —  confinued. 

costs  in  case  they  sever,  411,  888. 

trustees  and  cestuis  que  trust  ought  not  to  sever,  886. 

costs  in  case  of  severing,  886. 
SHARE, 

resulting  trust  must  be  in  some  aliquot  share,  132. 

cesiui  que  trust  may  have  suit  for  an  aliquot  share  set  apart  fur  him, 
882. 
SHARES, 

when  trustees  should  sell,  439. 
SHELLEY'S   CASE,  358,  359,  361. 
SHIFTING  USE,  377,  378,  380,  381. 
SIGNATURE, 

■what  is  and  by  whom  to  a  declaration  of  trust,  83. 
SILENCE, 

when  parties  maj^  be  silent,  178,  179. 

when  silence  is  fraudulent  concealment,  177-180. 
SIMPLE   CONTRACT  DEBTS, 

whether  breach  of  trust  creates,  260. 
SIMPLE  INTEREST,  468-472. 

See  Interest  ;  Compound   Interest. 
SIMPLE   TRUST,  18,  473,  521. 
SOLICITOR.     See  Attorney. 

of  a  bankrupt  cannot  purchase  his  property,  209. 
SOVEREIGN, 

may  create  trusts,  29,  30. 

may  be  a  trustee,  40. 

remedies  against,  40. 

may  be  cestui  que  trust,  61. 
SPECIAL  POWERS,  473. 

See  Powers. 
SPECIAL   TRUST,  18. 
SPECIALTY   DEBTS, 

when  breach  of  trust  creates,  260. 
SPECIE, 

when   cestui  que  trust  is  to  enjoy  the  trust  property  in  specie  and 
when  it  must  be  converted,  448-451. 

rules  that  govern  the  construction,  448-451,  547,  548. 
SPECIFIC  GIFT  OF  PERSONAL  PROPERTY,  451,  547. 
SPECIFIC   PERFORMANCE,  778. 

will  be   refused   when    it   amounts   to   breach   of  trust,    176,   770, 
787. 

courts  may  decline  to  decree,  and  at  the  same  time  decline  to  set  the 
contract  aside,  176. 

reasons  for  which  specific  performance  is  refused,  176,  787. 


666  INDEX. 

SPECULATION, 

trust  funds  must  not  be  employed  in,  427,  429,  454,  464,  471. 
SPORTING, 

whetber  a  trustee  can  have  tbe  advantage  or  privilege  of  sporting  over 
tbe  trust  estate,  427,  913. 
SPRINGING  USE,  377,  378,  380,  881. 
STATE, 

cannot  remove  trustees  and  appoint  otbers,  30. 

may  be  a  trustee,  41. 

remedies  against,  41. 

may  be  cestui  que  trust,  62. 
STATUTE   OF  FRAUDS.     See  Frauds,  Statute  of. 
STATUTE   OF  USES.     See  Uses. 
STATUTE  OF   WILLS,  89. 

effect  of,  upon  proof  of  trusts,  87-94. 
STATUTE  43  ELTZ.  eh.  IV.,  692-696. 

commonly  called  the  statute  of  charitable  uses,  692. 

abstract  of  the  statute,  692  and  n. 

construction  of  the  statute,  692-696. 

the  charities  named  in  it,  692-706. 

the   States    in   which   it  is  in   force   or   its  principles   acted  upon, 
748,  n. 
STATUTE  IN  RELATION  TO  PROPERTY  OF  MARRIED  WOMEN, 
675-686. 

See  Married  Women. 
STATUTES  IN  RELATION  TO  CHARITABLE  USES,  691,  692. 

See  Charitable  Use. 
STEP-FATHER, 

not  obliged  to  maintain  his  wife's  children,  613. 

but  he  cannot  have  maintenance  if  the  support  costs  him  nothing, 
613. 
STOCKS, 

when  trustees  should  sell,  439. 

stock  dividends,  who  entitled  to,  544,  545,  n. 

trustees  entitled  to  possession  of  stock,  543. 

stock  of  cattle,  546. 

whether  trustees  should  invest  in  stock,  455,  456. 
STRANGER, 

profiting  by  breach  of  trust  must  be  made  party  in  suits  to  remedy  it, 
877. 

otherwise  if  without  notice,  877. 

stranger  in  loco  iJarentis  purchasing  in  the  name  of  another,  144. 

purchase  in  the  name  of  stranger,  143. 
STRICT   POWERS,  490. 

See  Powers. 


INDEX.  667 

SUBPCENA,  3,  13,  17. 
SUGGESTIO  FALSI,  171-177. 
SUIT, 

when  a  suit  suspends  the  powers  of  trustees,  474,  511. 

costs  of.     See  Costs. 

when  barred.     See  Statute  of  Limitations. 

trustee  may  bring  suit  for  his  own  protection,  928. 

must  call  parties  before  the  court,  881,  928. 

appeals  by  trustees  from  decrees  of  courts  of  competent  jurisdiction, 
at  their  own  risk,  928. 

costs  in  suits  for  protection  of  trustee,  928. 
SUPPRESSIO  VERI,  ISO  el  seq. 
SUPPRESSION  OF   DEEDS  Oil  WILLS,  183. 
SURRENDER, 

the  trustee  may  surrender  his  estate  to  the  cestui  que  trust,  349. 

when  the  presumption  of  a  surrender  will  be  made,  349. 

grounds  of  the  presumption,  349-355. 

when  it  can  be  made  and  when  not,  349-355. 

must  be  some  evidence  of,  349-355. 

must  be  in  support  of  a  title,  355. 

of  outstanding  terms,  356. 
SURVIVORS, 

whether  survivors  can  execute  powers  and  what  powers,  497,  499, 
502,  505. 
SURVIVORSHIP, 

of  trustees,  343,  344. 

heirs  and  representatives  of  a  deceased  trustee  cannot  interfere  in  the 
trust,  343,  344. 

the  whole  vests  in  the  survivors,  343,  344. 

the  death  of  one  destroys  a  bare  authority  committed  to  several,  414. 

but  all  authority,  duties,  and  powers  coupled  with  an  interest  com- 
mitted to  several  survives,  414. 

when  a  specific  performance  will  be  ordered  to  a  survivor   alone, 
13G. 

as  to  survivorship  of  wife,  G37,  638,  643,  644. 

of  powers  of  sale  in  mortgage,  495. 


T. 

TAXES, 

when  duty  of  trustees  to  pay,  331,  527. 
where  cestui  que  trust  must  pay  taxes,  654. 
TECHNICAL  TERMS, 

when  to  have  their  strict  legal  meaning  and  when  not,  357-359,  361. 


668  INDEX. 

TENANCY  IN  COMMON, 

each  trustee,  tenant  in  common,  may  sell  his  share,  334-,  374. 
TENANTS   IN"  COMMON, 

each  may  act  separately  in  collecting  rents  and  other  moneys,  415, 

416. 
TENANT  AT   WILL, 

cannot  renew  a  lease  in  his  own  name,  196. 
TENANT   FOR  LIFE, 

cannot  i-enew  leases  in  his  own  name,  196. 

right  to  the  possession,  540,  541. 

may  be  a  quasi  trustee  for  the  remainder-man,  540,  547. 

as  to  repairs  by  or  for  tenant  for  life,  477,  540,  552. 

when  tenant  for  life  may  have  possession  of  heir-looms,  pictures,  &c., 

541. 
where  a  schedule  and  security  may  be  required  from,  541. 
as  to  his  possession  and  use  of  furniture  and  other  articles,  542. 
■where  tenant  for  life  may  use  such  articles,  542. 
not  entitled  to  the  possession  of  stocks  and  other  securities  the  income 

of  which  is  to  be  paid  to  him,  543. 
may  have  a  power  of  attorney  from  the  trustee  to  collect  the  income, 

543. 
caution  necessary  in  such  power,  543. 
whether  tenant  for  life  is  entitled  to  extra  dividends,  stock  dividends, 

and  bonuses  upon  stocks  in  corporate  companies,  544,  545,  and 

note, 
whether  tenant  for  life  is  entitled  to  the  increase  of  stock  and  utensils 

upon  a  farm,  546. 
whether  he  must  rejilace  articles  wasted  by  the  using,  546. 
rights  of  tenant  for  life  where  a  gift  is  specific,  547. 
rights  when  the  trustee  must  convert  the  articles  and  invest  the  pro- 
ceeds, 547. 
when  a  tenant  for  life  may  be  required  to  refund  an  undue  proportion 

of  income  or  interest  received  by  him,  547,  548. 
when  the  tenant  for  life  may  call  for  the  conversion  of  remainders, 

and  future  interests  that  may  not  fall  into  enjoyment  during  his 

life,  549. 
right  of  the  tenant  for  life  to  income  during  the  first  year,  550,  551, 

and  note, 
rights  under  various  directions  for  the  settlement  of  the  estate  and 

investment  of  the  proceeds,  550,  551,  n. 
as  to  waste  by  tenant  for  life,  552. 
rights  of  tenant  for  life  in  respect  to  insurance,  553. 
rights  and  duties  of  tenant  for  life  as  to  payment  of  rates  and  taxes, 

554. 
as  to  the  interest  upon  incumbrances,  554. 


INDEX.  '  669 

TENANT  FOR   Ll¥E,  —  conlhmed. 

where  the  tenant  for  life  buys  in  and  takes  an  assignment  of  an  incum- 
brance, 554. 
duties  of  a  second  tenant  for  life,  554. 

tenant  for  life  must  pay  the  expenses  of  cultivating  a  farm  or  of  run- 
ning a  manuflictory,  554. 
in  case  the  estate  is  sold  tenant  for  life  may  receive  the  income  of  the 

purchase-money,  554. 
or  it  may  be  divided,  and  how,  554. 
rights  of  the  assignee  of  the  tenant  for  life  if  he  becomes  bankrupt, 

555. 
in  what  cases  assignees  can  take  an  interest  under  the  tenant  for  life, 

555. 
apportionment  of  rent,  interest,  dividends,  income,  or  annuities  be- 
tween tenant  for  life  and  his  representatives  and  remainder-men, 
556. 
rights  and  duties  of  tenant  for  life  as  to  the  renewing  of  leases,  533- 

538. 
right  of  the  tenant  for  life  to  a  proportion  of  tlie  proceeds  of  sales  of 
property  upon  which  he  has  made  large  and  permanent  repairs, 
554. 
TENANT  IN  TAIL, 

may  make  himself  trustee  by  preventing  a  bar  of  the  entail,  181, 
182. 
TENANT  TO   PRAECIPE,  270. 
TERMS   OUTSTANDING, 
surrender  of,  356.     " 
merger  of,  356. 
TESTAMENTARY   DISPOSITION, 

must  be  capable  of  proof  in  the  Probate  Court,  91-94. 
THELLUSSON  ACT,  394. 

occasion  of  its  enactment,  394. 
construction  of,  395. 

legislation  upon  the  same  subject  in  the  United  States,  398. 
TliMBER,  776. 

trustees  for  sale  cannot  sell  timber  separate  from  the  land,  774,  776. 
TIME.     See  Laches  ;  Statute  ok  Limitations. 

what  time  allowed  for  payments  into  court,  825. 
within  what  time  trusts  for  sale  may  be  executed,  771. 
when  trusts  to  raise  portions  must  be  executed,  578,  579,  582,  772, 
trustee  may  have  compensation  for  his  time,  916-919,  n. 
elTect  of  time  upon  charitable  uses,  745. 
TITLE, 

trustee  cannot  set  up  adverse  title  against  cestui  que  trust,  433,  863, 
864. 


670  INDEX. 

TITLE,  —  continued. 

trustee  for  sale  must  make  a  good  title,  774. 
how  be  should  proceed,  774. 

the  application  of  the  purchase-money  is  a  question  of  title,  790. 
so  is  the  power  of  signing  receipts,  7'JO. 
TOMBS, 

■whether  a  trust  to  build  is  charitable,  706. 
TRADE, 

trust  estate  cannot  be  employed  in,  427-429,  454,  464,  471. 
when  trustees  are  directed  to  continue  a  trade,  454. 
where  a  fiduciary  employs  trust  money  in  trade  he  may  have  com- 
pensation for  his  time  and  skill,  430. 
TRADER, 

when  a  trader  will  be  presumed  to  have  used  trust  money  in  his  busi- 
ness, 464. 
how.a  trader  trustee  must  account,  427-432. 
how  a  stranger  must  account  for  money  and  interest,  430. 
TRANSMIT, 

how  trustees  may  transmit  money  to  a  distance,  404,  405,  929. 
TRANSMUTATION    OF    POSSESSION.       See    Voluntary    Settle- 
ment. 
when  necessary  to  complete  a  voluntary  trust  or  settlement,  100- 
102. 
TRAVELLING, 

trustees  entitled   to  an  allowance  for  all  the   travelling  expenses, 

910. 
must  keep  a  regular  account  of  them,  911. 
TROUBLE, 

trustee  may  have  compensation  in  the  United  States  for  time  and 
trouble,  917-919,  notes. 
TROVER, 

can  be  maintained  against  purchaser  of  personal  property  in  breach 
of  the  trust,  828. 
TRUE  OWXER, 

trustee  the  true  owner  in  a  court  of  law,  475,  476,  790. 
equity  treats  the  cestui  que  trust  as  the  true  owner,  790. 
TRUSTS.  See  Acceptance;  Alien;  Appointment;  Bondholders; 
Breach  of  Trust  ;  Charitable  Uses  ;  Commission  ;  Compen- 
sation; Confidence;  Constructive  Trusts;  Corporations; 
Creation  of  Trusts  ;  Creditors,  Trusts  for  ;  Discharge  ; 
Disclaimer  ;  Discretionary  Trusts  ;  Duties  ;  Estates  ;  Ex- 
ecutory Trusts  ;  Express  Trusts  ;  Implied  Trusts  ;  In- 
fants; Lien;  Lunatics;  Married  Women;  Ministerial 
Trusts;  Parties  ;  Powers  ;  Privileges;  Refusal;  Remain- 
der-man ;    Removal  ;    Repairs  ;    Resulting    Trusts  ;     Sale, 


INDEX.  671 

TRUSTS,  —  continued. 

Trusts  for  ;  Secret  Trusts  ;  Simple  Trusts  ;  Sovereign  ; 
Special  Trusts  ;  State  ;  Statute  of  Frauds  ;  Stock  Divi- 
dends ;  Tenant  for  Life  ;  Trusts  for  Charitable  Uses  ; 
United  States;  Uses;  Voluntary  Settlement. 

origin  of,  1. 

practice  under  the  civil  law  in  relation  to,  2. 

popular  meaning  of  the  word,  6. 

definition  of,  2,  13. 

is  collateral  to  the  estate,  14. 

binds  all  in  privity,  14. 

Jidei  commissa  were  the  models  of,  2. 

true  foundation  of,  8. 

uses,  trusts,  and  confidence  identical,  6-8,  298. 

late  establishment  of,  in  America,  9. 

cognizable  only  in  chancery,  17. 

classification  of,  18-27. 

duration  of,  23. 

in  what  property  may  exist,  67-G9. 

whether  in  property  in  a  I'oreign  jurisdiction,  70-72, 

what  formality  to  create,  82. 

what  will  be  a  trust,  82. 

whether  may  be  created  by  parol,  75. 

express  trust  cannot  be,  75. 

in  writing,  cannot  be  varied  by  parol,  76. 

nor  ingrafted  upon  a  deed  by  parol,  76. 

nor  where  a  vakiable  consideration  is  paid  by  grantee,  76. 

in  chattels,  may  be  proved  by  parol,  84. 

created  by  wills,  89-94. 

created  by  papers  referred  to  in  wills,  93. 

how  such  papers  must  be  referred  to  or  executed,  93. 

cannot  be  grafted  upon  wills  by  parol,  94. 

for  valuable  consideration  may  be  enforced,  though  not  perfectly  cre- 
ated, 96. 

how  created  and  enforced  if  voluntary,  90-111.     / 

by  equitable  conijtruction,  231-247. 

vendor's  lien  for  the  purchase-money,  in  the  nature  of,  232. 

arising  from  intermeddling,  245,  265,  288.  , 

powers  in  the  nature  of,  248-258. 

etl'ect  of  tiie  statute  of  uses  upon,  298-318,  521. 

how  must  be  created  under  the  statute  of  uses,  304-306. 

history  of  the  growth  of,  under  the  statute  of  uses,  29.S-308. 

when  the  statute  ot  uses  executes  the  legal  estate  in  the  cestui  que 
trust,  3U0,  808. 

must  not  tend  to  perpetuity,  377-392. 


672  ■  INDEX. 

TRUSTS,  —  continued. 

cannot  be  delegated,  402-410. 

determination  of,  920. 

not  allowed  to  fliil  for  want  of  a  trustee,  38,  45,  240,  248,  427. 

properties  and  incidents  of  a,  321-355. 
TRUSTEE.     See  New  Trustees. 

who  may  be  a,  39. 

all  persons  capable  of  taking  the  legal  title,  39. 

the  sovereign  may  be  a,  40.     See  Sovereign. 

the  United  States  may  be.  a,  40.     See  United  States. 

the  State  may  be  a,  40.     See  State. 

corporations  may  be,  42-45.     See  Corporations. 

unincorporated  societies  may  be  trustees  for  charities,  46.    See  Char- 
ities ;  Voluntary  Societies. 

a  board  of  public  officers  may  be,  47. 

married  women  may  be,  48-51.     See  Married  Women. 

infants  may  be  trustees,  52-54.     See  Infants. 

aliens  may  be,  55.     See  Aliens. 

lunatics  may  be,  56.     See  Lunatics. 

religious  persons,  nuns  or  monks  may  be,  57. 

near  relations  may  be,  59. 

considerations  that  govern  the  appointment  of,  39. 

trusts  not  allowed  to  fail  for  want  of,  38,  45,  240,  248,  427. 

cannot  make  a  profit  from  his  office,  129,  196,  209,  427. 

cannot  purchase  the  trust  property,  194-200,  209. 

cannot  renew  leases  in  his  own  name,  196. 

reasons  for  the  rules,  194-196. 

mortgagee  in  possession  a  trustee,  243. 

trustee  de  son  tort,  245,  265,  288. 

how  agents  may  become  trustees,  246. 

disclaimer  by.     See  Disclaimer. 

discharge  of.     See  Discharge. 

removal  of.     See  Removal. 

refusal  of.     See  Refusal. 

appointment  of.     See  Appointment. 
•    power  of.     See  Powers. 

duties  of.     See  Duties. 

privileges  o^     See  Privileges. 

estates  of.     See  Legal  Instates. 

no  such  thing  as  a  passive  trustee,  266,  411. 
'     trustees  must  act  jointly,  412. 

trustees  cannot  buy  in  debts,  428. 

nor  use  the  money  in  trade,  427-429. 

nor  speculation,  427-429. 

nor  can  he  keep  a  gift  for  retiring  from  the  office,  428. 


«^ 


INDEX.  673 

TRUSTEE,  —  continued. 

nor  can  he  put  the   money  in  the  hands  of  another  for  a  bonus, 

429. 
all  persons  standing  in  a  fiduciary  relation  must  account  for  all  profits, 

4o0,  431. 
illustration  as  to  who  stand  in  such  relations  that  they  must  account, 

430,  431. 
trustee  cannot  be  receiver,  432. 
trustees  can  receive  no  indirect  compensation  for  services   to    the 

estate,  432. 
if  trustees  are  factors,  brokers,  bankers,  attorneys,  or  any  other  busi- 
ness men  they  cannot  receive  pay  for  exercising  such  functions  for 
the  trust  estate,  432. 
nor  can  any  one  connected  with  them  as  a  partner  in  such  manner 

that  they  receive  part  of  the  compensation,  432. 
compensation  of  trustee.     See  Commission  ;  Compexsatiok. 
cannot  receive  any  in  England,  432,  916. 
in  the  United  States  they  may,  918,  notes. 

duty  of  trustees  as  to  getting  possession  of  the  property,  438,  441. 
must  collect  debts  and  personal  securities,  438-140,  444. 
must  sell  stocks  and  shares,  439,  414. 
how  they  must  follow  collections,  440,  444. 
what  care  they  must  take  in  the  custody  of  trust  property,  441,  444, 

445. 
where  trustees  reside  in  different  places,  442. 
may  deposit  money  and  plate  in  the  bank,  442-445. 
how  they  must  deposit  money,  413-415. 
may  place  money  in  hands  of  third  persons  in  the  course  of  business, 

444,  445. 
what  precautions  they  must  take,  414. 
trustees  must  convert  the  property,  when,  448-451. 
trustees  must  invest,  when  and  how,  452-467. 
when  trustees  uuist  pay  interest,  and  what  interest,  468-472. 
general  powers  of  trustees,  473-487.     See  Powkks. 
special  powers  of  trustees,  489-519.     See  Powers. 
duties  of  trustees  between  tenant  for  life  and  remainder-man,  539- 
556.     See  PtEMAiNDEK-MAN ;  Rkpaius;  Stock  Dividends;  Ten- 
ant for  Life. 
trustees  to  pay  debts  under  a  will,  557-507. 
trustees  to  pay  legacies,  568-575. 
trustees  for  raising  portions,  576-583,  772. 
trustees  for  creditors,  585-602.     See  Creditors,  Trusts  for. 
trustees  for  infants,  603,  621.     See  Infants. 
trustees  for  married  women,  625-686.     See  Maurxf.d  Wo.men. 
trustees  for  chanties,  687-748.     See  CuARiTAULii  Uses. 

vni..  Ti.  4o 


674  INDEX. 

TRUSTEE,  —  cnniinued. 

may  act  by  a  majority,  413. 

trustees  for  charitable  uses  may  be  authorized  by  court  to  appoint 
their  successors,  287. 

otherwise  in  private  trusts,  287. 

trustees  for  bondholder,  749-763.     See  Bondholders. 

trustees  for  sale,  764-787.     See  Sale,  Tkustee  for. 

trustee's  receipt,  799-808. 

rights  of  cestuis  que  trust  ajjainst  trustees,  816-853.  See  Account; 
Action;  Breach  of  Trust;  Distribution;  Follow;  Injunc- 
tion ;  Interest  ;  Limitations,  Statute  of  ;  Payment  into 
Court  ;  Profits  ;  Receivers  ;  Release  ;  Remedies  ;  Removal  ; 
Suit. 

trustees  costs  for  and  against,  891,  892.     See  Costs. 

trustees  must  join  and  be  joined  in  suits,  how,  873,  889.  See  Par- 
ties. 

trustee's  right  to  compensation,  916-919.  See  Allowances  ;  Com- 
mission ;  Compensation  ;  Time  ;  Trouble. 

trustee's  allowances,  904-915.  See  Allowances;  Disbursements; 
Expenses  ;  Travelling. 

distribution  by  trustees,  920-933.  See  Determination  of  Trust; 
Distribution. 

trustee's  right  to  a  release,  922-927. 

is  not  compelled  to  run  any  risks,  928. 

is  entitled  to  the  direction  of  the  court,  928. 

must  see  that  trust  funds  are  paid  to  proper  person,  927. 

opinion  of  counsel,  not  a  protection,  927. 

bound  to  know  the  laws  of  their  own  domicile,  927. 

otherwise  of  foreign  laws,  927. 


u. 


UNCERTAINTY.     See  Charitable  Trusts. 

in  cestui  que  trust,  66. 

what  uncertainty  will  defeat  implied  trusts,  116. 
UNFITNESS,  292. 

meaning  of  the  word  applied  to  trustees,  292. 
UNINCORPORATED  SOCIETIES, 

may  be  trustees  for  charities,  46. 
UNITED  STATES, 

may  create  a  trust,  30. 

may  be  trustees,  41. 

cannot  be  sued,  41. 

may  be  cestui  que  trust,  62. 


INDEX.  675 

UNLAWFUL  TRUSTS,  21,  03,  04,  05. 

for  illegitimate  children  to  be  begotten,  00. 

statutes  cannot  be  evaded,  03,  05. 
USAGE, 

in  construction  of  charitable  bequests,  745. 
USE.     See  Uses. 
USES, 

origin  and  growth  of,  3,  298. 

description  of,  4,  298. 

inconvenience  of,  4,  298. 

legislation  upon,  5,  298. 

statute  of  uses,  5,  298. 

effect  of  the  statute,  0,  298-300. 

cases  not  within  the  statute,  0,  300. 

use  upon  a  use,  0,  300. 

terra  of  years,  0,  300,  302,  303. 

personal  property,  0. 

when  active  duties  to  be  performed,  0,  305. 

identical  with  trusts,  0,  7,  8,  298. 

uses  distinguished  from  the  fee,  7. 

statute  of  uses  never  repealed,  7,  299. 

will  operate  upon  all  conveyances,  298. 

its  effect  in  the  several  States,  299,  n. 

uses  might  be  created  by  parol  at  common  law  when  the  estate  might 
pass  by  parol,  75. 

but  when  a  deed  was  necessary  to  convey  an  estate,  a  writing  was 
necessary  to  create  a  use,  75. 

how  the  statute  of  uses  turned  an  equitable  estate  into  a  legal  estate, 
298. 

probable  intent  of  the  statute  to  turn  all  equitable  estates  into  Icga 
estates,  300. 

how  three  classes  of  equitable  estates  were  excepted  out  of  the  oper- 
ation of  the  statute,  and  survived  under  the  name  of  trusts,  300- 
303,  305. 

to  create  a  trust  such  an  equitable  estate  must  be  created  that  the 
statutte  of  uses  will  not  convert  it  into  the  legal  estate,  300,  304. 

what  form  of  conveyancing  will  create  a  use  or  trust  which  the  stat- 
ute will  not  execute,  301-305. 

statute  of  uses  executes  only  the  estate  that  is  conveyetl  to  the  first 
taker,  312. 

shifting  and  springing  uses,  377,  378,  380,  381. 

statute  of  uses  executes  most  simple  trusts  of  the  dry  legal  title,  521. 
USUAL   POWERS, 

under  a  direction  to  insert  usual  powers  in  a  settlement,  what  powers 
will  be  inserted,  375. 


676  INDEX. 


V. 


VALUATION. 

of  property  by  a  trustee  for  sale,  770. 
VARY, 

power  to  vary  securities,  509,  799. 

bow  it  should  be  exercised,  509. 

implies  power  to  give  receipts,  509,  799. 
VENDOR, 

becomes  a  trustee  of  the  title  for  the  purchaser,  122,  231. 
VENDOR'S   LIEN,  231-239. 

See  Lien. 
VESTING  OF  THE  ESTATE, 

when  it  vests  in  the  trustees,  308-320. 

■when  it  vests  in  cotrustees,  273. 

when  it  vests  in  the  heirs,  273. 

whether  it  vests  within  the  time  allowed  by  law,  380,  381-393. 
VISITOR, 

the  founder  of  charity  is,  742,  743. 
VOID.      See    Accumulation;    Infant;    Lunatic;   Married   Women; 
Mortmain  ;  Perpetuity. 

deed  of  lunatic  not  void,  189. 

but  voidable,  189. 
VOIDABLE.     See  Void. 
VOLUNTARY  AGREEMENT, 

whether  will  be  enforced,  109. 
VOLUNTARY  ASSOCIATIONS,  730. 
VOLUNTARY  CONVEYANCE.     See  Resulting  Trust.  ^' 

no  trust  results  to  grantor  from,  162,  165. 

in  fraud  of  creditors,  165. 

not  fivored  by  courts,  163. 
VOLUNTARY   SETTLEMENT.     See  Voluntary  Trust. 

whether  a  voluntary  executory  settlement  will  be  enforced  in  favor 
of  wife  or  child,  107,  108,  367. 

such  settlements  not  enforced  as  against  purchasers  or  creditors,  108. 

will  be  enforced  against  volunteers,  heirs,  legatees,  or  devisees,  108, 
109. 

but  not  if  volunteers  have  a  meritorious  relation,  108. 

effect  of  a  seal  upon  voluntary  settlements.  111. 

revocation  of,  104. 
VOLUNTARY  TRUST, 

will  be  enforced  if  completely  created  or  perfected,  96,  98,  100. 

if  not  completed  will  not  be  enforced,  97. 

whether  perfectly  created  or  not,  a  question  of  fact  in  each  case,  99. 


INDEX.  677 

VOLUNTARY   TRUST,  —  continued. 

when  the  possession  must  be  transmuted,  100. 

when  the  subject  is  a  chose  in  action,  101. 

when  the  subject  is  an  equitable  interest,  102. 

vohmtary  trust  may  be  perfected  without  delivery  of  the  instrument, 
103. 

if  perfected  cannot  be  annulled  by  settlor,  104. 

notice  not  necessary  to  its  completion,  105. 

may  be  defeated  by  debts,  104. 

whether  it  will  be  defeated  by  a  subsequent  sale  for  a  valuable  con- 
sideration to  a  vendee  with  notice,  104,  108. 

revocation  of,  104. 

effect  of  omission  of  power  of  revocation  in  a,  104. 
VOLUNTEER, 

conveyance  of  trust  estate  to,  without  notice,  217,  828. 
VOTES, 

who  may  vote  by  virtue  of  the  trust  estate,  332. 

trustee  holding  stock  of  corporations  may  vote  upon  it,  331. 
VOUCHERS, 

right  oi  cestui  que  trust  to  inspect,  821-823. 


w. 

WAIVER, 

of  breach  of  trust,  850-8o3. 
WARD, 

contracts  of,  with  guardian,  200. 

gifts  to  guardian  by,  200. 
WASTE, 

tenant  for  life  cannot  commit,  477,  552. 
AVASTING  PROPERTY.     See  Perishable  Property. 
WIFE.     See  Married  Woman. 

whether  equity  will  enforce  a  voluntary  settlement  in  favor  of,  107- 
111. 

purchase  in  the  name  of  wife  creates  no  resulting  trust,  143,  148. 
WILFUL   DEFAULT, 

must  be  specially  alleged  or  no  relief  can  be  had  for  it,  800. 
WILLING  AND  DESIRING,  112-114.  See  Implied  Trusts. 
WILLS. 

nuncupative  wills,  87,  89. 

statute  of  wills,  89. 

how  wills  must  be  executed,  89. 

trusts  cannot  be  created  by  will  unless  executed  according  to  law, 
89,  90,  93. 


678  INDEX. 

WILLS,  —  continued. 

trusts  may  be  proved  by  recitals  in  wills,  91,  92. 

distinction  between  wills  and  declarations  of  trust,  92. 

probate  of  wills  and  effect  of,  93. 

how  papers  must  be  referred  to  or  executed  to  be  a  part  of  a  will,  93 

trusts  cannot  be  grafted  upon  devises  by  parol,  94. 

probate  of,  96,  182,  183.     See  Probate. 

will  not  be  noticed  by  courts  without  probate,  182,  183. 

relief  where  wills  are  prevented  from  being  made  by  fraud,  181,  182. 

courts  of  equity  have  no  jurisdiction  over  the  probate  of,  183. 

court  of  ecjuity  cannot  set  aside  a  fraudulent  probate  of,  183. 

nor  remove  executor,  281. 

how  fraud  in  the  probate  of  wills  may  be  corrected,  182. 
WISHING   AND    DESIRING,  112-lU.     See  Implied  Trusts. 
WISHING  AND   REQUESTING,  112-114.     See  Implied  Trusts. 
WOMAN.     See  Married  Woman;  Parties  to  Trusts. 
WORDS,  112-114.     See  Implied  Trusts  ;  Precatobs*  Words. 
WRITING, 

not  necessary  at  common  law  to  convey  lands,  74. 

whether  a  use  might  be  created  without  writing,  7-5. 

what  writing  sufficient  under  the  statute  of  frauds,  83. 

not  necessary  to  prove  trust  in  chattels,  86. 

when  a  written  request  or  consent  is  made  necessary  to  the  action  or 
exercise  of  the  powers  of  trustees,  the  writing  must  be  produced  as 
required,  453,  o09,  778-784. 


END    OF    VOL.    II. 


Cambridge :  Press  of  John  Wilson  &  Son. 


■i — ' 

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